Agricultural Marketing Service
Commodity Credit Corporation
Farm Service Agency
Foreign Agricultural Service
Engineers Corps
National Foundation on the Arts and the Humanities
Committee for Purchase From People Who Are Blind or Severely Disabled
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Engineers Corps
Council on Environmental Quality
Council on Environmental Quality
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
Indian Affairs Bureau
Land Management Bureau
National Park Service
Employee Benefits Security Administration
Employment and Training Administration
Mine Safety and Health Administration
National Highway Traffic Safety Administration
Comptroller of the Currency
Thrift Supervision Office
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Commodity Credit Corporation and Farm Service Agency, USDA.
Final rule.
This rule specifies regulations for the Dairy Product Price Support Program (DPPSP), which has replaced the Price Support Program for Milk, and amends regulations for the Dairy Indemnity Payment Program (DIPP). The two programs are authorized by the Food, Conservation, and Energy Act of 2008 (the 2008 Farm Bill) through 2012. The DPPSP supports the price of cheddar cheese, butter, and nonfat dry milk by providing a standing offer from Commodity Credit Corporation (CCC) to purchase those products at specific support prices. This rule specifies the minimum price support levels for cheddar cheese, butter, and nonfat dry milk. This rule also specifies the minimum price at which CCC may sell dairy products from inventory. DIPP indemnifies dairy farmers and manufacturers of dairy products for losses suffered due to contamination of milk and milk products. This rule extends DIPP through 2012 and amends the method through which DIPP payments will be disbursed in the event that available appropriated funds are insufficient to pay all claims. That method is changing from a pro rata method to a first-come, first-paid basis.
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.) should contact the USDA Target Center at (202) 720-2600 (voice and TDD).
The 2008 Farm Bill (Pub. L. 110-246) requires amendments to the regulations for the Dairy Product Price Support Program as authorized, and DIPP as reauthorized and extended through 2012. The changes for each of the programs are explained below.
Section 1501 of the 2008 Farm Bill (7 U.S.C. 8771) authorizes the Dairy Product Price Support Program, completely replacing the Price Support Program for Milk. The 2008 Farm Bill does not fundamentally change the basic structure or goals of the previous program, which required CCC to support milk prices through the purchase of dairy products. The 2008 Farm Bill specifies the minimum CCC purchase prices for cheddar cheese, butter, and nonfat dry milk; previously only the support price for milk was specified. The 2008 Farm Bill also includes new provisions that CCC is implementing in this rule to reduce the dairy product purchase prices if CCC purchases exceed certain threshold quantities. Those threshold quantities specified in the 2008 Farm Bill are sufficiently large that it is unlikely the minimum support prices will be impacted.
This rule in 7 CFR part 1430, subpart A, specifies rules for the DPPSP consistent with the 2008 Farm Bill and with current purchase requirements of the agency in the wake of the new and mandatory legislation.
This rule provides a definition of “net removals” of dairy products from the market through the Dairy Product Price Support Program and the Dairy Export Incentive Program (authorized in 15 U.S.C. 713a-14). Section 1501 of the 2008 Farm Bill, which specifies how net removals are calculated, is the basis for the definition. CCC uses the amount of net removals during a 12 month period to determine whether CCC purchases have exceeded the threshold quantities for reduced support prices. The definition is consistent with the definition USDA uses in the monthly World Agricultural Supply and Demand Estimates (WASDE) report on the milk market.
The requirements for dairy products to be eligible for CCC purchase, specified in § 1430.102, “Eligible Products,” are similar to the requirements in the regulations for the previous Price Support Program for Milk. The eligibility requirements have been reorganized for clarity. A definition of “eligible offeror” is added by this rule. The term “eligible offeror” is used in the current regulations but is not defined; this rule adds a definition that clarifies the eligible types of persons or legal entities who may sell dairy products to CCC. To be eligible, the offeror must be the manufacturer of the commodity offered or a marketing cooperative for the manufacturer. The definition of “eligible offeror” is a discretionary change; all other provisions in this rule for the Dairy Product Price Support Program are required by the 2008 Farm Bill or were established for the previous Price Support Program for Milk.
This rule implements the 2008 Farm Bill dairy product purchase prices in § 1430.103, “Purchase Prices.” The prices specified in this regulation are minimum support prices; they are specified using the “not less than X cents per pound” language from the 2008 Farm Bill. The minimum purchase prices are the same as the purchase prices CCC established under the Price Support Program for Milk, so the new purchase price requirements will have little effect on the extent of dairy price support or on program administration unless the purchase prices are set above the minimums.
The 2008 Farm Bill requires the Secretary of Agriculture to pay uniform prices for dairy products across the United States. Therefore, the support price for each type of dairy product applies to all regions of the United States.
As required by the 2008 Farm Bill, this rule specifies purchase threshold quantities, which, if exceeded, would decrease the minimum allowable CCC purchase prices for dairy products. As explained below, these purchase threshold quantities are very large and are unlikely to be exceeded, so the lower support prices are unlikely to ever be permitted.
As specified in the 2008 Farm Bill and in this rule, if CCC cheddar cheese purchases over a 12 month period, less unrestricted sales by CCC, exceed 200 million pounds, but do not exceed 400 million pounds, then the purchase price may be reduced by 10 cents per pound during the immediately following month. If the cheese purchases, less unrestricted sales, exceed 400 million pounds, then the purchase price may be reduced by 20 cents per pound during the immediately following month. The largest CCC total fiscal year (FY) annual cheese purchase in the last 10 years was 42 million pounds in FY 2003. Cheese purchases by CCC have not exceeded 200 million pounds since FY 1988.
If CCC butter purchases over a 12 month period, less unrestricted sales, exceed 450 million pounds, but not more than 650 million pounds, then the purchase price may be reduced 10 cents per pound during the immediately following month. If the butter purchases, less unrestricted sales, exceed 650 million pounds, then the purchase price may be reduced by 20 cents per pound during the immediately following month. The highest CCC total fiscal year butter purchase in the last 10 years was 12 million pounds in FY 2003. Butter purchases by CCC have not exceeded the minimum purchase threshold of 450 million pounds since FY 1992.
If CCC nonfat dry milk purchases over a 12 month period, less unrestricted sales, exceed 600 million pounds, but not more than 800 million pounds, then the purchase price may be reduced 5 cents per pound during the immediately following month. If the nonfat dry milk purchases, less unrestricted sales, exceed 800 million pounds, then the purchase price may be reduced by 10 cents per pound during the immediately following month. The largest nonfat dry milk CCC purchase in the past 10 years was 656 million pounds in FY 2002, which slightly exceeded the minimum purchase threshold.
Section 1430.103(b) provides that CCC may offer to purchase cheddar cheese, butter, fortified nonfat dried milk, or fortified instant nonfat dry milk in consumer-sized ready-to-consume packages at a premium to the purchase prices for cheddar cheese, butter, and nonfat dry milk announced in accordance with § 1430.103(a). Any funds expended to buy products processed into such packages in excess of the announced price for the cheddar cheese, butter, and nonfat dry milk would not be considered a price support expense and would have to be apportioned under section 416(a) of the Agricultural Adjustment Act of 1949.
Section 1430.103(c) provides that CCC may offer to purchase block and barrel cheddar cheese with a lower moisture content than is specified in § 1430.102(c), as evidenced by the grading certificate, at a higher price than is announced in accordance with § 1430.103(a). The formula for determining the premium price for lower moisture cheddar cheese would be specified in the CCC purchase announcement. Although a similar provision did not appear in the Price Support Program for Milk regulations, the former regulation provided that CCC purchases were subject to purchase announcements and those announcements did allow for low moisture purchases and price adjustments.
Section 1430.104, “Sales from Inventories,” implements the requirement in the 2008 Farm Bill that CCC may not sell its dairy product inventory for unrestricted use at less than 110 percent of CCC's purchase price. The CCC purchase price used in this calculation is the support price before the price was reduced for any purchase quantity thresholds. Section 1430.104 also specifies that CCC may sell its dairy product inventory for restricted use, which is more common than sales for unrestricted use, at an unspecified price. CCC conducts restricted use sales from time to time, such as sales for casein manufacturing or livestock feed use.
In addition to the changes discussed above, this rule reorganizes 7 CFR part 1430 for clarity, but the remaining provisions are substantially similar to those for the previous program.
The purpose of DIPP is to indemnify dairy farmers and manufacturers of dairy products who, through no fault of their own, suffer income losses with respect to milk or milk products that were removed from commercial markets because such milk or milk products contained certain harmful pesticide residues, chemicals, or toxic substances, or were contaminated by nuclear radiation or fallout.
Section 1505 of the 2008 Farm Bill amends 7 U.S.C. 450l to extend DIPP authorization through 2012, without changing any provisions of the program. This rule amends 7 CFR part 760, subpart A, to reflect the extension by updating the authority citation using the U.S. Code citation.
This rule is changing the method by which DIPP funds will be distributed if the available appropriated funds are not sufficient to pay all claims. This is a discretionary change; it is not required by the 2008 Farm Bill. This change will allow payments to be made as claims arise by implementing a “first-come, first-paid” system. This will provide enhanced relief over the alternative of delaying all claims to the end of the year to determine whether the demand will exceed the supply of funds, requiring pro-rated partial payments. If the funds are not sufficient to pay all claims, Congress would need to determine whether to enhance the appropriation for later years. The alternative method of pro-rating claims based on available funding would likely result in no one receiving immediate payment even though in most years the funds are sufficient to cover all claims. The adoption of a first-come, first-paid basis should be in keeping with the general nature and history of the program.
Also, section 1601(c)(2) of the 2008 Farm Bill exempts this rule from Paperwork Reduction Act (44 U.S.C. Chapter 35) requirements, therefore, this rule removes § 760.34 that specified the OMB control number for the previous information collection approval.
These regulations are exempt from the notice and comment requirements of the Administrative Procedures Act (5 U.S.C. 553), as specified in section 1601(c) of the 2008 Farm Bill, which requires that the regulations be promulgated and administered without regard to the notice and comment provisions of 5 U.S.C. 553 or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971, (36 FR 13804) relating to notices of proposed rulemaking and public participation in rulemaking. Therefore, these regulations are made effective by this rule without a prior proposed rule or prior public comment.
The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866
This rule is not subject to the Regulatory Flexibility Act because USDA is not required by 5 U.S.C. 553 or any other law to publish a notice of proposed rulemaking for this rule.
The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations for compliance with NEPA (7 CFR part 799). The changes required by the 2008 Farm Bill that are identified in this rule do not change the structure or goals of the program and can be considered administrative in nature. Therefore, FSA has determined that NEPA does not apply to this final rule and no environment assessment or environmental impact statement will be prepared.
This program is not subject to Executive Order 12372, which requires consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published in the Federal Register on June 24, 1983 (48 FR 29115).
This rule has been reviewed under Executive Order 12988. This rule is not retroactive and it does not preempt State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. Before any judicial action may be brought regarding the provisions of this rule the administrative appeal provisions of 7 CFR parts 11 and 780 must be exhausted.
The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
The policies contained in this rule do not have tribal implications that preempt tribal law.
This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) for State, local, and tribal government or the private sector. In addition, USDA was not required to publish a notice of proposed rulemaking for this rule. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
The title and number of the Federal assistance program in the Catalog of Federal Domestic Assistance to which this final rule applies is 10.053—Dairy Indemnity Payments.
The regulations in this rule are exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in section 1601(c)(2) of the 2008 Farm Bill, which provides that these regulations be promulgated and administered without regard to the Paperwork Reduction Act.
CCC and FSA are committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Dairy products, Indemnity payments, Pesticides and pests.
Dairy products, Fraud, Penalties, Price support programs, Reporting and recordkeeping requirements.
7 U.S.C. 450j-l.
(a) Payment of indemnity claims will be contingent upon the availability of FSA funds to pay such claims. Claims will be, to the extent practicable within funding limits, paid from available funds, on a first-come, first-paid basis, based on the date FSA approves the application, until funds available in that fiscal year have been expended.
(b) DIPP claims received in a fiscal year after all available funds have been expended will not receive payment for such claims.
7 U.S.C. 7982, 8771, and 8773; and 15 U.S.C. 714b and 714c.
During the period beginning on January 1, 2008, and ending December 31, 2012, the Secretary of Agriculture will support the price of cheddar cheese, butter, and nonfat dry milk by providing a standing offer to purchase those products from eligible offerors. The products must be made from cow's milk produced in the United States. Purchases are subject to the terms and conditions in CCC's purchase announcements.
For purposes of this subpart, the following definitions apply:
(a) To be eligible for the program in this subpart, the products must be manufactured from dairy cow's milk produced in the United States, and must not have been previously owned by CCC. Dairy cow in this instance means an animal of the kind that produces the majority of dairy products in the United States and not, for example, cows of other species of animals such as yaks or oxen.
(b) Products will be purchased only from eligible offerors of the product, and only in carlot weights.
(c) The products purchased must be of the following grades and moisture content, as evidenced by USDA-issued inspection certificates:
(1) Block cheddar cheese must be U.S. Grade A or higher, and the moisture content must not exceed 38.5 percent;
(2) Barrel cheddar cheese must be U.S. Extra Grade, and the moisture content must not exceed 36.5 percent;
(3) Butter must be U.S. Grade A or higher;
(4) Nonfat dry milk must be U.S. Extra Grade, and the moisture content must not exceed 3.5 percent.
(d) CCC may require other terms and conditions of purchase, as specified in CCC's purchase announcement.
(a) CCC will offer to purchase products at the following prices for all regions of the United States:
(1) Cheddar cheese in blocks for not less than $1.13 per pound; unless
(i) Net removals of cheese for a period of 12 consecutive months exceed 200,000,000 pounds, but do not exceed 400,000,000 pounds, in which case the CCC block cheese purchase price will be not less than $1.03 per pound, during the immediately following month, or
(ii) Net removals of cheese for a period of 12 consecutive months exceed 400,000,000 pounds, in which case the CCC block cheese purchase price will be not less than $0.93 per pound during the immediately following month;
(2) Cheddar cheese in barrels for $0.03 per pound less than the cheddar cheese block price;
(3) Butter for not less than $1.05 per pound; unless
(i) Net removals of butter for a period of 12 consecutive months exceed 450,000,000 pounds, but do not exceed 650,000,000 pounds, in which case the CCC butter purchase price will be not less than $0.95 per pound during the immediately following month, or
(ii) Net removals of butter for a period of 12 consecutive months exceed 650,000,000 pounds, in which case the CCC butter purchase price will be not less than $0.85 per pound during the immediately following month; and
(4) Nonfat dry milk for not less than $0.80 per pound, unless
(i) Net removals of nonfat dry milk for a period of 12 consecutive months exceed 600,000,000 pounds, but do not exceed 800,000,000 pounds, in which case the CCC nonfat dry milk purchase price will be not less than $0.75 per pound during the immediately following month, or,
(ii) Net removals of nonfat dry milk for a period of 12 consecutive months exceed 800,000,000 pounds, in which case the CCC nonfat dry milk purchase price will be not less than $0.70 per pound during the immediately following month.
(b) CCC may offer to purchase cheddar cheese, butter, fortified nonfat dry milk, or fortified instant nonfat dry milk in consumer-sized ready-to-consume packages at a premium to the purchase prices for cheddar cheese, butter and nonfat dry milk specified in paragraph (a) of this section. Any such offers will be made through CCC's purchase announcements, and such offers may be limited by quantity and to a specific time period.
(c) CCC may offer to purchase cheddar cheese with a lower moisture content than is specified in § 1430.102(c) at a premium to the prices specified in paragraph (a) of this section. Any such offers will be made through CCC's purchase announcements, and such offers may be limited by quantity and to a specific time period.
(a) CCC may sell any dairy product purchased as specified in this subpart for unrestricted use at the market price prevailing for that product at the time of sale, except that the sale price will not be less than 110 percent of the purchase price specified in § 1430.103(a), before any price reduction for the amount of CCC net removals of the dairy products.
(b) CCC may sell or distribute dairy products purchased under this section for restricted use when such sale is determined to maximize the return to CCC on its purchases.
U.S. Nuclear Regulatory Commission.
Final rule.
The Nuclear Regulatory Commission (NRC) is revising its regulations to change the fees for search and review of agency records by NRC personnel. This document is necessary to inform the public of these changes.
Becky Wood at 301-415-6968, e-mail
You can access publicly available documents related to this document using the following methods:
These changes are necessary due to the Biennial Review of Fees for the Freedom of Information Act, as required by the Chief Financial Officer's Act of 1990 and Office of Management and Budget (OMB) Circular No. A-25. Specifically, 10 CFR part 9, section 9.37(a) will be changed from GG-7/7 to GG-7/6 and 9.37(c) will be changed from ES-4 to ES-Maximum.
The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.
This final rule does not contain information collection requirements and, therefore, is not subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
The NRC has determined that the backfit rule does not apply to this final rule; therefore, a backfit analysis is not required for this final rule because these amendments are administrative in nature and do not involve any provisions that would impose backfits as defined in 10 CFR chapter I.
In accordance with the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.
Freedom of Information Act Regulations, Privacy Act Regulations, Government Sunshine Act Regulations, and Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities.
Because this amendment constitutes a minor administrative change to the regulations, the notice and comment provisions of the Administrative Procedure Act do not apply under 5 U.S.C. 553(b)(B).
Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
Subpart A also issued 5 U.S.C. 552; 31 U.S.C. 9701; Pub. L. 99-570.
Subpart B is also issued under 5 U.S.C. 552a.
Subpart C is also issued under 5 U.S.C. 552b.
(a) Clerical search and review at a salary rate that is equivalent to a GG-7/step 6, plus 16 percent fringe benefits;
(c) Senior executive or Commissioner search and review at a salary rate that is equivalent to an ES-Maximum, plus 16 percent fringe benefits.
Nuclear Regulatory Commission.
Direct final rule; withdrawal.
The U.S. Nuclear Regulatory Commission (NRC) is withdrawing a direct final rule that would have revised the NUHOMS® HD cask system listing within the list of approved spent fuel storage casks to include Amendment No. 1 to Certificate of Compliance (CoC) Number 1030. The NRC is taking this action because the applicant identified that a certain Technical Specification (TS) for Boral characterization was not written precisely and in a manner that could be readily and demonstrably implemented. Specifically, the requirements for meeting TS 4.3.1, “Neutron Absorber Tests,” which references Section 9.1.7.3 of the Safety Analysis Report (SAR), are not precisely quantified in that it requires that “the average size of the boron carbide particles in the finished product is approximately 50 microns after rolling.” Use of language such as “average” and “approximately” is imprecise, and no ranges or statistical variations are specified. The NRC will publish a revised direct final rule along with its companion proposed rule after the necessary revisions to the TS are made.
The direct final rule published May 6, 2010 (75 FR 24786), is withdrawn.
Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6219, e-mail
On May 6, 2010 (75 FR 24786), the NRC published in the
The NRC also published a companion proposed rule on May 7, 2010 (75 FR 25120). A correction notice was published on May 17, 2010 (75 FR 27401), to correctly specify an effective date of July 21, 2010. The direct final rulemaking and the companion proposed rulemaking were published in the
The rulemaking is being withdrawn because the applicant identified that a certain TS for Boral characterization was not written precisely and in a manner that could be readily and demonstrably implemented. Specifically, the requirements for meeting TS 4.3.1, “Neutron Absorber Tests,” which references Section 9.1.7.3 of the SAR, are not precisely quantified in that it requires that “the average size of the boron carbide particles in the finished product is approximately 50 microns after rolling.” Use of language such as “average” and “approximately” is imprecise, and no ranges or statistical variations are specified.
The NRC will publish a revised direct final rule along with its companion proposed rule after the necessary revisions to the TS are made.
For the Nuclear Regulatory Commission.
Occupational Safety and Health Review Commission.
Final rule.
The Occupational Safety and Health Review Commission (OSHRC) revises its regulations implementing the Freedom of Information Act (FOIA). The regulations have been updated to reflect the amendments to the FOIA from the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act), as well as changes in OSHRC's own policies and procedures.
This rule is effective on August 16, 2010.
Jennifer D. Marr, FOIA Public Liaison, or Robert M. Kahn, Office of the General Counsel,
OSHRC is publishing a final rule revising its regulations implementing the FOIA. On April 28, 2010, OSHRC published for comment a notice of proposed rulemaking (NPRM) in the
OSHRC makes several substantive and technical revisions to its regulations implementing the FOIA (5 U.S.C. 552, as amended) that fall within two general categories. First, OSHRC modifies its existing FOIA regulations to reflect the amendments to the FOIA contained in the OPEN Government Act, Public Law 110-175, 121 Stat. 2524. The OPEN Government Act amended various FOIA administrative procedures, such as when an agency may toll the statutory time for responding to FOIA requests and how to indicate exemptions authorizing deletion of materials under the FOIA on the responsive record.
Second, as a result of the Chief FOIA Officer's review of OSHRC's FOIA operations, OSHRC revises its regulations to further clarify its policies and procedures relating to the processing of FOIA requests and the administration of its FOIA operations. These revisions include changes to the description of the OSHRC reading rooms and to OSHRC fee policies.
In 29 CFR 2201.3, OSHRC revises the description of the Chief FOIA Officer's duties in paragraph (a) to reflect the more detailed description of those duties set forth under the OPEN Government Act. 5 U.S.C. 552(k). Additionally, OSHRC adds a description of the FOIA Public Liaison's duties in paragraph (c) to reflect the responsibilities described in the OPEN Government Act. 5 U.S.C. 552(a)(6)(B)(ii), (l). In paragraph (d) OSHRC revises the FOIA Service Center's contact information. OSHRC also revises paragraph (d) to add information about status requests provided by the FOIA Service Center. 5 U.S.C. 552(a)(7)(B).
In 29 CFR 2201.4, OSHRC revises paragraph (c) to clarify the type of records publicly available in the e-FOIA Reading Room and where to access them. OSHRC changes paragraph (d) to explain the procedures for using OSHRC's on-site e-FOIA Reading Room. OSHRC also revises its definition of “Representative of the news media, or news media requester” in paragraph (e) to reflect the definition provided in the OPEN Government Act. 5 U.S.C. 552(a)(4)(A)(ii). OSHRC also adds definitions of “Exceptional circumstances” and “Record” to paragraph (e), based on the description of these terms in the OPEN Government Act. 5 U.S.C. 552(a)(4)(A)(viii), (f)(2).
In 29 CFR 2201.6, OSHRC revises paragraph (a) to add the tolling requirements set forth in the OPEN Government Act. 5 U.S.C. 552(a)(6)(A)(ii). Following the new requirement in the OPEN Government Act, OSHRC revises its procedure for making deletions within records as set forth in paragraph (g) to include, where technically feasible, marking the exemption under which each deletion is made. 5 U.S.C. 552(b). OSHRC also creates a new paragraph (h) describing how OSHRC assigns tracking numbers to incoming FOIA requests and notifies a requester of the tracking number assigned to the request. 5 U.S.C. 552(a)(7)(A). In addition, OSHRC creates a new paragraph (i) to indicate that when searching for responsive records, OSHRC will ordinarily consider only records in its possession as of the date it begins its search. Finally, OSHRC makes minor grammatical corrections to paragraphs (c) and (d)(3).
In 29 CFR 2201.7, OSHRC revises the copying fee provision in paragraph (b)(1) and the search fee provision in paragraph (b)(2) to reflect the new requirements for each in the OPEN Government Act. 5 U.S.C. 552(a)(4)(A)(viii). OSHRC revises paragraph (e) to consider requests for which fees are likely to exceed $25 received only after the requester agrees to pay the actual or estimated fee.
In 29 CFR 2201.10, OSHRC updates paragraph (a) to reflect the new maintenance of statistics requirements in the OPEN Government Act. 5 U.S.C. 552(e).
OSHRC received no comments to the proposed rules.
OSHRC has determined that the Paperwork Reduction Act, 44 U.S.C. 3501
The Commission has determined under the Regulatory Flexibility Act, 5 U.S.C. 606(b), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804(2), and has certified to the Chief Counsel for Advocacy of the Small Business Administration, that these rules will not have a significant economic impact on a substantial number of small entities. The Commission makes a large amount of information available to the public, including small entities, on its Web site pursuant to the FOIA and other public disclosure requirements. In this regard, the Commission has available on its Web site copies of the Commission's procedural rules, final Commission decisions since 1972, final administrative law judges' decisions since 1993, administrative law judges' decisions pending Commission review, strategic plans, performance reports, budget reports, as well as other information that may be of interest to the public. Small entities, like any other individual or entity, may request under the FOIA other information from the Commission's files that has not been generally made available to the public. The FOIA establishes a fee structure to cover the direct costs of the government in searching for, reviewing, and duplicating requested records. The Commission's final rule is fully consistent with the FOIA's requirements. For these reasons, a Regulatory Flexibility Statement and Analysis has not been prepared.
In compliance with the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
Freedom of information.
29 U.S.C. 661(g); 5 U.S.C. 552.
(a) The Chairman delegates to the Chief FOIA Officer the authority to act upon all requests for agency records. The Chief FOIA Officer shall, subject to the authority of the Chairman:
(1) Have agency-wide responsibility for efficient and appropriate compliance with this section;
(2) Monitor implementation of the FOIA throughout the agency and keep the Chairman and the Attorney General appropriately informed of the agency's performance in implementing this section;
(3) Recommend to the Chairman such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve implementation of this section;
(4) Review and report to the Attorney General, through the Chairman, at such times and in such formats as the Attorney General may direct, on the agency's performance in implementing this section; and
(5) Facilitate public understanding of the purposes of the statutory exemptions of this section by including concise descriptions of the exemptions in both the agency's FOIA handbook, and the agency's annual report on this section, and by providing an overview, where appropriate, of certain general categories of agency records to which those exemptions apply.
(c) The Chief FOIA Officer shall designate the FOIA Public Liaison(s), who shall serve as the supervisory official(s) to whom a FOIA requester can raise concerns about the service the FOIA requester has received following an initial response. FOIA Public Liaisons shall be responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.
(d) OSHRC establishes a FOIA Requester Service Center that shall be staffed by the FOIA Disclosure Officer(s) and FOIA Public Liaison(s). The address and telephone number of the FOIA Requester Service Center is 1120 20th Street, NW., 9th Floor, Washington, DC 20036-3457, (202) 606-5700. The FOIA Requester Service Center is available to provide information about the status of a request to the person making the request using the assigned tracking number (as described in § 2201.6(h)), including:
(1) The date on which the agency originally received the request; and
(2) An estimated date on which the agency will complete action on the request.
The revisions and additions read as follows:
(c)
(1) Final decisions, including concurring and dissenting opinions, remand orders, as well as Administrative Law Judge decisions pending OSHRC review, issued as a result of adjudication of cases;
(3) Agency policy statements and interpretations adopted by OSHRC and
(4) Administrative staff manuals that affect a member of the public, if any;
(5) Copies of records that have been released to a person under the FOIA that, because of the subject matter, the Commission determines have become or are likely to become the subject of subsequent requests for substantially the same records; and
(d)
(e) * * *
(a)
(1) The agency may toll the 20-day period once while awaiting information that it has reasonably requested from the requester under this section. The agency may make more than one request to the requester for information not related to issues regarding fee assessment, but can only toll the 20-day period once; or
(2) The agency may toll the 20-day period as many times as are necessary to clarify any issues regarding fee assessment.
(c)
(d) * * *
(3) A requester should assume, unless otherwise notified by the Commission, that its request is in the first track of processing. The Commission will notify a requester when its request is placed in the second track for processing and that notification will include the estimated time for completion. Should subsequent information substantially change the estimated time to process a request, the requester will be notified in writing. In the case of a request expected to take more than 30 working days for action, a requester may modify the request to allow it to be processed faster or to reduce the cost of processing. Partial responses may be sent to a requester as documents are obtained by the FOIA Disclosure Officer from the supplying offices.
(g)
(h)
(i)
The revisions and addition read as follows:
(b) * * *
(1)
(2)
(v)
(e)
The revisions and additions read as follows:
(a) * * *
(3) A complete list of all statutes that the agency used to authorize the withholding of information under 5 U.S.C. 552(b)(3), which exempts information that is specifically exempted from disclosure by other statutes and the number of occasions on which each statute was relied upon;
(5) The number of requests for records pending before the agency as of September 30 of the preceding year, and the median and average number of days that these requests had been pending before the agency as of that date;
(7) The median number of days taken by the agency to process different types of requests, based on the date on which the requests were received by the agency;
(8) The average number of days for the agency to respond to a request beginning on the date on which the request was received by the agency, the median number of days for the agency to respond to such requests, and the range in number of days for the agency to respond to such requests;
(9) Based on the number of business days that have elapsed since each request was originally received by the agency—
(i) The number of requests for records to which the agency has responded with a determination within a period up to and including 20 days, and in 20-day increments up to and including 200 days;
(ii) The number of requests for records to which the agency has responded with a determination within a period greater than 200 days and less than 301 days;
(iii) The number of requests for records to which the agency has responded with a determination within a period greater than 300 days and less than 401 days; and
(iv) The number of requests for records to which the agency has responded with a determination within a period greater than 400 days;
(10) The average number of days for the agency to provide the granted information beginning on the date on which the request was originally filed, the median number of days for the agency to provide the granted information, and the range in number of days for the agency to provide the granted information;
(11) The median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal;
(12) Data on the 10 active requests with the earliest filing dates pending at the agency, including the amount of time that has elapsed since each request was originally received by the agency;
(13) Data on the 10 active administrative appeals with the earliest filing dates pending before the agency as of September 30 of the preceding year, including the number of business days that have elapsed since the requests were originally received by the agency;
(14) The number of expedited review requests that are granted and denied, the average and median number of days for adjudicating expedited review requests, and the number adjudicated within the required 10 days;
(15) The number of fee waiver requests that are granted and denied, and the average and median number of days for adjudicating fee waiver determinations;
Coast Guard, DHS.
Temporary final rule.
The Coast Guard will enforce a special local regulation for the annual Port Huron to Mackinac Island Sail Race. This action is necessary to safely control vessel movements in the vicinity of the race starting point and provide for the safety of the general boating public and commercial shipping. During this period, no person or vessel may enter the regulated area without the permission of the Coast Guard Patrol Commander (PATCOM).
This rule is effective from 9 a.m. through 4 p.m. on July 17, 2010.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-XXXX and are available online by going to
If you have questions concerning this temporary rule, call or e-mail Mr. Frank Jennings, Jr., Auxiliary and Boating Safety Branch, Ninth Coast Guard District, 1240 East 9th Street, Cleveland, OH, via e-mail at:
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the special local regulation pertaining to this annual race was previously published in the Code of Federal Regulations. The special local regulation was inadvertently removed during the most recent revision to 33 CFR 100.901. Based on the hazards associated with marine regattas within Port Huron and the short amount of time until the event, delaying publication of this regulation would be contrary to the public interest.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Special local regulations are necessary to safely control vessel movements in the vicinity of the race starting point and provide for the safety of the general boating public and commercial shipping. The Captain of the Port Sector Detroit has determined that the start of the Port Huron to Mackinac Island Sail Race does pose significant risks to public safety and property. The likely combination of congested waterways, vessels engaged in a regatta, and fast currents could easily result in serious injuries or fatalities.
The Coast Guard will enforce special local regulations for the annual Port Huron to Mackinac Sail Race from 9 a.m. until 4 p.m. on July 17, 2010. The special local regulations apply to the waters of the Black River, St. Clair River and lower Lake Huron from:
In order to ensure the safety of spectators and participating vessels, the special local regulations will be in effect for the day of the start of the event. The Coast Guard will patrol the race area under the direction of a designated Coast Guard Patrol Commander (PATCOM). Vessels desiring to transit the regulated area may do so only with prior approval of the PATCOM and when so directed by that officer. The PATCOM may be contacted on Channel 16 (156.8 MHZ) by the call sign “Coast Guard Patrol Commander.” Vessels will be operated at a no wake speed to reduce the wake to a minimum, and in a manner which will not endanger participants in the event or any other craft. The rules contained in the above two sentences shall not apply to participants in the event or vessels of the patrol operating in the performance of their assigned duties.
In the event these special local regulations affect shipping, commercial vessels may request permission from the PATCOM to transit the area of the event by hailing call sign “Coast Guard Patrol Commander” on Channel 16 (156.8 MHZ).
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
Special local regulations pertaining to this annual race were previously published in the Code of Federal Regulations. These special local regulations were inadvertently removed by the U.S. Coast Guard during the most recent revision to 33 CFR 100.901. Because this race is held annually in the same location, local maritime interests are already familiar with the provisions of this regulation.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Black River, St. Clair River and lower Lake Huron from 9 a.m. until 4 p.m. July 17, 2010.
These special local regulations will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be enforced for only 7 hours on a
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these regulations and fishing rights protection need not be incompatible. We have also determined that this Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian Tribes that have questions concerning the provisions of this Rule or options for compliance are encouraged to contact the point of contact listed under
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a safety zone and is therefore categorically excluded under paragraph 34(g) of the Instruction.
A final environmental analysis check list and categorical exclusion determination are available in the docket where indicated under
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves the enforcement of special local regulations, pursuant to 33 CFR
An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
33 U.S.C. 1233, Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Vessels will be operated at a no wake speed to reduce the wake to a minimum, and in a manner which will not endanger participants in the event or any other craft. The rules in this subparagraph shall not apply to participants in the event or vessels of the patrol operating in the performance of their assigned duties.
(3) The Patrol Commander may direct the anchoring, mooring or movement of any boat or vessel within the regatta area. A succession of sharp, short signals by whistle or horn from vessels patrolling the area under the direction of the U.S. Coast Guard PATCOM shall serve as a signal to stop. Vessels so signaled shall stop and shall comply with the orders of the PATCOM. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.
(4) The PATCOM may establish vessel size and speed limitations and operating conditions. The PATCOM may restrict vessel operation within the regatta area to vessels having particular operating characteristics. The PATCOM may terminate the marine event or the operation of vessel at any time it is deemed necessary for the protection of life and property.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a safety zone upon specified waters of the Potomac River. All persons and vessels are prohibited from transiting the zone, except as authorized by the Coast Guard Captain of the Port Baltimore. This action is necessary to provide for the safety of life on navigable waters during a fireworks display launched from a discharge barge located near Dumfries, Virginia. This safety zone is intended to protect the maritime public in a portion of the Potomac River.
This rule is effective from 7:30 p.m. on July 24, 2010 through 11 p.m. on July 25, 2010.
Documents indicated in this preamble as being available in the docket are part of docket USCG-2010-0589 and are available online by going to
If you have questions on this temporary rule, call or e-mail Mr. Ronald L. Houck, Sector Baltimore Waterways Management Division, Coast Guard; telephone 410-576-2674, e-mail
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Fireworks displays are frequently held from locations on or near the navigable waters of the United States. The potential hazards associated with fireworks displays are a safety concern during such events. The purpose of this rule is to promote public and maritime safety during a fireworks display, and to protect mariners transiting the area from the potential hazards associated with a fireworks display, such as the accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. This rule is needed to ensure safety on the waterway during the scheduled event.
Prince William Marine Sales, of Woodbridge, Virginia, will sponsor a fireworks display from a barge located in the Potomac River near Dumfries, Virginia scheduled on Saturday, July 24, 2010 at 9:30 p.m., and if necessary due to inclement weather, on Sunday, July 25, 2010 at 9:30 p.m.
The Coast Guard is establishing a temporary safety zone on certain waters of the Potomac River, within a 500 feet radius of a fireworks discharge barge in approximate position latitude 38°34′07″ N., longitude 077°15′32″ W., located approximately 650 feet east of the pierhead at Tim's Rivershore Restaurant in Dumfries, Virginia (NAD 1983). The temporary safety zone will be enforced from 7:30 p.m. through 11 p.m. on July 24, 2010, and if necessary due to inclement weather, from 7:30 p.m. through 11 p.m. on July 25, 2010. The effect of this temporary safety zone will be to restrict navigation in the regulated area during the fireworks display. No person or vessel may enter or remain in the safety zone. Vessels will be allowed to transit the waters of the Potomac River outside the safety zone. Notification of the temporary safety zone will be provided to the public via marine information broadcasts.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this safety zone will restrict some vessel traffic, there is little vessel traffic associated with commercial fishing, and recreational boating in the area can transit waters outside the safety zone. In addition, the effect of this rule will not be significant because the safety zone is of limited duration and limited size. For the above reasons, the Coast Guard does not anticipate any significant economic impact.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to operate, transit, or anchor in a portion of the Potomac River, located at Dumfries, VA, from 7:30 p.m. through 11 p.m. on July 24, 2010, and if necessary due to inclement weather, from 7:30 p.m. through 11 p.m. on July 25, 2010. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. The safety zone is of limited size and duration. In addition, before the effective periods, the Coast Guard will issue maritime advisories widely available to users of the waterway to allow mariners to make alternative plans for transiting the affected area.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing a temporary safety zone.
An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(2) Persons or vessels requiring entry into or passage within the zone must request authorization from the Captain of the Port or his designated representative by telephone at 410-576-2693 or on VHF-FM marine band radio channel 16.
(3) All Coast Guard assets enforcing this safety zone can be contacted on VHF-FM marine band radio channels 13 and 16.
(4) The operator of any vessel within or in the immediate vicinity of this safety zone shall:
(i) Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on board a vessel displaying a Coast Guard Ensign, and
(ii) Proceed as directed by any commissioned, warrant or petty officer on board a vessel displaying a Coast Guard Ensign.
(c)
(d)
(e)
Environmental Protection Agency (EPA).
Direct final rule.
EPA finds that the Mendenhall Valley nonattainment area in Alaska attained the National Ambient Air Quality Standard (NAAQS) for particulate matter with an aerodynamic diameter of less than or equal to a nominal ten micrometers (PM
This rule is effective on September 14, 2010, without further notice, unless EPA receives adverse comment by August 16, 2010. If EPA receives adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2010-0432, by any of the following methods:
•
•
•
•
Steve Body at
Throughout this document wherever “we”, “us” or “our” are used, we mean EPA. Information is organized as follows:
The NAAQS are levels for certain ambient air pollutants set by EPA to protect public health and welfare. PM
Effective December 18, 2006, EPA revoked the annual PM
Areas meeting the requirements of section 107(d)(4)(B) of the Clean Air Act (CAA or the Act) were designated nonattainment for PM
All initial moderate PM
All PM
Generally, we determine whether an area's air quality is meeting the PM
Attainment of the 24-hour standard is determined by calculating the expected number of days in a year with PM
The original attainment date for the Mendenhall Valley PM
After the Mendenhall Valley PM
Whether an area has attained the PM
The State of Alaska operated two PM
The Floyd Dryden site recorded two values above the level of the 24 hour PM10 NAAQS (exceedances) in February 1992. These values were flagged by ADEC as exceptional events due to high winds, but AQS does not show that R10 concurred on these flags. Thus, these two daily values are included in the expected exceedance calculations. Outside of these two exceedances there have been no other exceedances of the daily PM
There were a number of years for which the number of reported daily values did not meet the 75% data completeness criteria required for making attainment determinations: 1998, 2000, 2003, 2008, and 2009. Therefore an affirmative attainment determination can only be made for a subset of these years; 1992-94, 1993-95, 1994-96, 1995-97, 2004-06, and 2005-07. The 1993-1995 expected exceedance rate is 0.0 which likewise demonstrates attainment with the NAAQS by the attainment date.
The Trio Street site recorded five PM
Although the attainment date for the Mendenhall Valley PM
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 14, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.
Federal Communications Commission.
Final rule.
In this document, the Commission issued an Order (“
Effective January 1, 2011.
Melvin Spann,
This is a summary of the Commission's Order in WT Docket No. 99-87 and RM-9332, FCC 10-119, adopted on June 29, 2010 and released June 30, 2010. The Commission waives certain of its rules pertaining to the January 1, 2011 interim deadlines associated with the narrowbanding of private land mobile radio licensees in the 150-174 MHz and 421-512 MHz bands. The full text of
1. In this order, we grant in part and deny in part a petition filed by the National Public Safety Telecommunications Council (NPSTC) requesting a stay of the January 1, 2011 interim deadlines associated with the narrowbanding of private land mobile radio (PLMR) licensees in the 150-174 MHz and 421-512 MHz bands. In previous orders, the Commission set January 1, 2013 as the final deadline for PLMR licensees in these bands to migrate to narrowband (12.5 kHz or narrower) technology, and January 1, 2011 as the deadline for certain interim measures relating to licensing and equipment. For the reasons set forth herein, we deny NPSTC's request with respect to the interim licensing deadlines, but we grant the requested relief in part with respect to certain interim equipment deadlines.
2. In a 1995
3. Subsequently, the Commission determined that the 1995 rules failed to provide adequate incentive to realize the Commission's spectrum efficiency goals in these bands, and stronger measures would be required to bring about a timely transition to narrowband technology. The Commission therefore amended the rules to provide that, by January 1, 2013, Industrial/Business and Public Safety Radio Pool licensees in the 150-174 MHz and 421-512 MHz bands must migrate to 12.5 kHz channel bandwidth, or utilize a technology that achieves equivalent efficiency.
4. The Commission also adopted interim deadlines to facilitate this transition to narrowband technology. Specifically, beginning January 1, 2011: (1) The manufacture, import, or certification of equipment capable of operating with only one voice path per 25 kHz of spectrum,
5. NPSTC states that it fully supports the 2013 deadline for licensees to transition to narrowband technology, but it requests a stay of the 2011 deadlines. It argues that enforcement of the prohibition on new or expanded 25 kHz licenses, and on the manufacture, import, or certification of equipment that includes a 25 kHz mode, will hamper public safety interoperability during the final two years of the transition, and requests that these deadlines be stayed until January 1, 2013. NPSTC also contends that the prohibition on certification of equipment that does not include 6.25 kHz capability will unnecessarily raise equipment costs, and should be stayed until January 1, 2015. NPSTC argues that the Commission's stay of these deadlines would not prevent or deter licensee implementation of narrowband technology prior to 2013, or prevent manufacturers from voluntarily including 6.25 kHz efficiency in new equipment.
6. The Wireless Telecommunications Bureau and Public Safety and Homeland Security Bureau sought comment on NPSTC's request. Commenters generally favor an extension of the interim measures relating to equipment manufacture, importation, and certification; but are split with regard to extending the interim licensing deadlines. Commenters agree that any action should apply equally to Industrial/Business and Public Safety licensees.
7. While NPSTC describes its petition as a stay request, we believe that it is more accurately characterized as a request for a temporary waiver of the 2011 deadlines. Pursuant to § 1.925(b)(3) of our rules, we may grant a request for waiver if it is shown that (a) the underlying purpose of the rules would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest; or (b) in view of unique or unusual factual circumstances, application of the rules would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative. We remain committed to bringing about a timely transition to narrowband technology in the PLMR services, in order to alleviate congestion in this crowded spectrum. Nevertheless, for the reasons set forth below, we find that a waiver is warranted with respect to certain aspects of NPSTC's request, and we accordingly grant the request in part and deny it in part. Specifically, we: (1) Extend the timeframe for manufacturing or importing equipment that includes a 25 kHz mode, but not the deadline for prohibiting certification applications for equipment that includes a 25 kHz mode; (2) maintain the deadline for new or expanded 25 kHz operations; and (3) extend the timeframe for certifying equipment that is not capable of operating in 6.25 kHz mode, but only until 2013, rather than 2015 as requested by NPSTC. Consistent with the comments we have received, all narrowbanding deadlines will continue to apply equally to Industrial/Business and Public Safety licensees.
8.
9.
10.
11.
12. For the aforementioned reasons, we grant the NPSTC request in part and deny it in part. We recognize the concerns of NPSTC and some commenters that enforcing certain interim deadlines as of January 1, 2011 could hamper operations during the final two years of the transition and unnecessarily raise equipment costs. Consequently, we:
• Waive until January 1, 2013 the deadline for ceasing manufacture or import of equipment that includes a 25 kHz mode, but deny the request to stay the deadline for prohibiting certification applications for 25 kHz-capable equipment;
• Decline to waive the deadline for seeking new or expanded 25 kHz operations; and
• Waive until January 1, 2013 the deadline for certifying equipment that is not capable of operating in 6.25 kHz mode.
We emphasize our commitment to the January 1, 2013 deadline for migrating to narrowband technology, which the Commission first adopted in 2003 and subsequently affirmed, in order to promote the efficient use of PLMR spectrum and facilitate the introduction of advanced technologies.
13. Accordingly,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; inseason adjustments to biennial groundfish management measures; request for comments.
This final rule makes inseason adjustments to trawl fishery management measures for petrale sole taken with selective flatfish and multiple trawl gears in the U.S. exclusive economic zone (EEZ) off the coasts of Washington, Oregon, and California, North of 40° 10.00' N. lat. This action, which is authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), is intended to prevent exceeding the 2010 OY for petrale sole.
Effective at 0001 hours local time on July 16, 2010. Comments on this
You may submit comments, identified by RIN 0648-BA05, by any one of the following methods:
• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal:
• Fax:206-526-6736, Attn: Gretchen Hanshew
• Mail: William W. Stelle, Jr., Regional Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070, Attn: Gretchen Hanshew.
Instructions: No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted to
NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Gretchen Hanshew (Northwest Region, NMFS), 206-526-6147, fax: 206-526-6736,
This final rule is accessible via the Internet at the Office of the
On December 31, 2008, NMFS published a proposed rule to implement the 2009-2010 specifications and management measures for the Pacific Coast groundfish fishery (73 FR 80516). The final rule to implement the 2009-2010 specifications and management measures for the Pacific Coast Groundfish Fishery was published on March 6, 2009 (74 FR 9874). This final rule was subsequently amended by inseason actions on April 27, 2009 (74 FR 19011), July 6, 2009 (74 FR 31874), October 28, 2009 (74 FR 55468), February 26, 2010 (75 FR 8820), May 4, 2010 (75 FR 23620), July 1, 2010 (75 FR 38030). Additional changes to the 2009-2010 specifications and management measures for petrale sole were made in two final rules: on November 4, 2009 (74 FR 57117), and December 10, 2009 (74 FR 65480). NMFS issued a final rule in response to a duly issued court order on July 8, 2010 (75 FR 39178). These specifications and management measures are at 50 CFR part 660, subpart G.
Changes to the groundfish management measures implemented by this action were recommended by the Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, at its June 11-17, 2010, meeting in Foster City, CA. Among other actions, the Council recommended reducing the bi-monthly cumulative limits for petrale sole in the limited entry non-whiting trawl commercial fisheries to respond to updated fishery information and other inseason management needs. On July 1, 2010, NMFS published a rule (75 FR 38030) that reduced the bi-monthly trip limits for petrale sole coastwide, effective July 1, 2010. The reductions to trip limits are intended to slow catch of petrale sole and stay below the 2010 petrale sole OY, and are described in more detail in the preamble to the July 1, 2010 rule.
The July 1, 2010, rule mistakenly omitted reductions to the bi-monthly cumulative limits for petrale sole for vessels using selective flatfish trawl gears and multiple trawl gears North of 40 10.00' N. lat. This rule reduces the petrale sole bi-monthly trip limits for these gear types, as were recommended by the Council, to keep the projected catch of petrale sole below the 2010 petrale sole OY.
These reductions to petrale sole trip limits must be implemented as quickly as possible. Even a short delay in implementation could allow vessels to take the entire two-month limit for period 4 (July-August). These changes are intended to reduce the catch of petrale sole in order to keep the total mortality of petrale sole within its 2010 OY. The reduction to trip limits also slightly reduces the projected impacts to co-occurring overfished species.
Estimated mortality of overfished and target species are the result of management measures designed to meet the Pacific Coast Groundfish FMP objective of achieving, to the extent possible, but not exceeding, OYs of target species, while fostering the rebuilding of overfished stocks by remaining within their rebuilding OYs.
Based on the considerations outlined above, the Council recommended and NMFS is implementing the following changes to cumulative limits in the limited entry non-whiting trawl fishery North of 40° 10.00' N. lat.: reduce petrale sole cumulative limits caught with selective flatfish trawl gear and multiple trawl gears from “9,500 lb (4,309 kg) per 2 months” to “6,300 lb (2,858 kg) per 2 months” in July-December.
The lower bi-monthly cumulative limit for petrale sole taken with selective flatfish and multiple trawl gears is being implemented during a bi-monthly period (See the DATES section). Vessels fishing with selective flatfish or multiple trawl gears that have taken more than 6,300 lb of petrale sole since July 1, 2010, must have begun their landing by the effective date of this rule. Land or landing means “to begin transfer of fish, offloading fish, or to offload fish from any vessel. Once transfer of fish begins, all fish aboard the vessel are counted as part of the landing.” Vessels fishing with selective flatfish or multiple trawl gears that have not already taken at least 6,300 lb of petrale sole since July 1, 2010 may land no more than 6,300 lb of petrale sole (including the amount that has been taken prior to the effective date of this rule) during this two-month period (July-August).
This rule makes routine inseason adjustments to groundfish fishery management measures based on the best available information and is taken pursuant to the regulations implementing the Pacific Coast Groundfish FMP.
These actions are taken under the authority of 50 CFR 660.370(c) and are exempt from review under Executive Order 12866.
These inseason adjustments are taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and are in accordance with 50 CFR part 660, the regulations implementing the FMP. These actions are based on the most recent data available. The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, Northwest Region, NMFS, (see
For the following reasons, NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under
The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its June 11-17, 2010, meeting in Foster City, CA. The Council recommended that these changes be implemented on or as close as possible to July 1, 2010. There was not sufficient time after that meeting to draft this document and undergo proposed and final rulemaking before these actions need to be in effect. For the actions to be implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent the Agency from managing fisheries using the best available science to approach, without exceeding, the OYs for federally managed species in accordance with the FMP and applicable laws. The adjustments to management measures in this document affect commercial fisheries off Washington, Oregon, and California.
These decreases to bi-monthly cumulative limits for petrale sole in the limited entry trawl fishery must be implemented in a timely manner to prevent exceeding the 2010 petrale sole OY, and prevent premature closure of fisheries that impact petrale sole. These measures are intended to reduce impacts to petrale sole, a species for which a severely reduced OY was implemented for 2010 (74 FR 65480). These changes must be implemented in a timely manner, as quickly as possible. Bi-monthly cumulative limits cover a two-month period, so if implementation is delayed, then fishermen could harvest the prior higher limit before the revised lower limit is effective. Decreases to cumulative limits for other flatfish and Dover sole in the limited entry trawl fishery have already been implemented.
Delaying these changes would keep management measures in place that are not based on the best available data, which could lead to exceeding OYs or early closures of the fishery if harvest of groundfish exceeds levels projected for 2010. Such delay would impair achievement of the Pacific Coast Groundfish FMP objective of approaching, but not exceeding, OYs.
Fisheries, Fishing, Indian Fisheries.
16 U.S.C. 1801
Farm Service Agency, USDA.
Record of Decision.
This document presents the Record of Decision (ROD) regarding the changes made to the Emergency Conservation Program (ECP). ECP provides emergency funding to owners, operators, and tenants of farms and ranches who suffered damage to their certain lands as a result of a natural disaster. Under the Proposed Action, Farm Service Agency (FSA) could expand ECP eligibility to other types of farmland, namely land that is timberland, or is a roadbed on an area of land that is eligible for ECP, and also farmsteads, feedlots, and grain bins. To implement the Proposed Action, FSA would develop a proposed rule to expand upon current regulations to reflect changes to the policy that currently only extends the ECP to traditional cropland and forage land. Any proposal to change any rule would be subject to public comment and to consideration and rejection as the circumstances, further reflection, and public comments might warrant. In the interim, however, FSA is inviting comments on the ROD. The ECP Supplemental Environmental Impact Statement (SEIS) tiers from the Emergency Conservation Programmatic Environmental Impact Statement completed in 2003 and published in the
We will consider comments that we receive by August 16, 2010. We will consider comments submitted after this date to extent possible.
We invite you to submit comments on this ROD and requests for copies of the Final SEIS (FSEIS) by any of the following methods:
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•
All written comments will be available for public inspection at the above address during business hours from 8 a.m. to 5 p.m., Monday through Friday, except holidays. The ECP FSEIS including appendices and this ROD are available on the FSA Environmental Compliance Web site at:
Matthew T. Ponish, National Environmental Compliance Manager, phone: (202) 720-6853, or e-mail:
After reviewing comments from interested individuals and other State and Federal agencies, FSA has decided to develop regulations in a manner consistent with the Proposed Action, which could include expanding land eligibility to include timberland, farmsteads, feedlots, farm roads, farm buildings, or grain bins. This decision was made after comparing the overall environmental impacts and other relevant information with regard to the reasonable alternatives considered in the ECP SEIS. The following briefly describes the purpose and need for the proposed changes and the alternatives considered.
The purpose of the Proposed Action is to expand the eligibility requirements of the current ECP. The need for the proposed change would be to better assist producers in recovering from a natural disaster.
ECP currently identifies cropland, hayland, and pastureland as eligible land for benefits in the event of natural disasters. The goal of ECP is to provide financial assistance to agricultural producers to restore agricultural lands to a productive state following a natural disaster, and to carry out emergency water conservation and water enhancing measures during periods of severe drought. Producers can apply for one time cost-share and technical assistance for authorized activities under the following emergency conservation (EC) practices:
(EC 1) Removing debris from farmland;
(EC 2) Grading, shaping, releveling, or similar measures;
(EC 3) Restoring permanent fences;
(EC 4) Restoring conservation structures and other similar installations;
(EC 5) Emergency wind erosion control measures;
(EC 6) Drought emergency measures;
(EC 7) Other emergency conservation measures; and
(EC 8) Field windbreaks and farmstead shelterbelt emergency measures.
ECP provides financial and technical assistance to producers for restoring agricultural land to normal production following a natural disaster. Regulatory procedures for implementing ECP are addressed in 7 CFR part 701 and further outlined in internal guidance for FSA State and county offices under FSA Handbook 1-ECP. The following natural disasters are covered by ECP:
• Hurricane or typhoon;
• Tidal waves;
• Tornado;
• Earthquakes;
• High winds, including micro-bursts;
• Volcanic eruptions;
• Storms, including ice storms;
• Landslides;
• Floods;
• Mudslides;
• High water;
• Severe snowstorms;
• Wind-driven water;
• Drought;
• Wildfire; and
• Other natural phenomenon.
Following a disaster event, FSA county committees (COC) or authorized responsible agency officials generally visit the site and make an assessment of the damage to verify that it meets the minimum ECP requirements. The COC then obtains concurrence from the FSA State committee before approving the disaster to qualify the area for ECP and requesting financial assistance from the national office. During periods of severe drought, the determination to implement ECP is made by the FSA National headquarters. For the land to be eligible, the damage must:
• Create new conservation problems which, if not treated, would impair or endanger the land;
• Materially affect the productivity of the land;
• Represent unusual damage that, except for wind erosion, does not occur frequently; or
• Be so costly to repair that Federal assistance is required to return the land to productive agricultural use.
To be eligible for ECP, an owner, operator, or tenant must contribute part of the cost for implementing the approved practice and must also have an interest in the farm. American Indian Tribes or individuals that own eligible land are eligible for ECP benefits. Consistent with a number of other programs and so that the funds will go to private producers who are in need, Federal agencies, States, political subdivisions of States, State agencies, and districts with taxing authority are not eligible for ECP benefits.
The land offered for assistance must be located in the county in which ECP has been approved, be normally used for farming or ranching operations, and be expected to have annual agricultural production. Eligible land, under current rules, is broadly defined as cropland, hayland, and pastureland. Additionally, lands eligible under ECP includes those lands that are:
• Protected by levees or dikes built to U.S. Army Corps of Engineers, Natural Resource Conservation Service, or similar standards, that were effectively functioning before the disaster;
• Protected by permanent or temporary vegetative cover;
• Used for commercially producing orchards, citrus groves, and vineyards;
• Used for producing agricultural commodities;
• Where conservation structures are installed, including waterways, terraces, sediment basins, diversions, windbreaks, etc. not funded by other conservation programs;
• In Christmas tree plantations;
• Devoted to container-grown nursery stock if the nursery stock is grown commercially for wholesale purposes and is grown on land in containers for at least one year (“retail producers” usually do not produce sufficient quantities of product for sale to be considered producers in the same sense as those that produce other agricultural commodities in bulk);
• In field windbreaks or farm shelterbelts where the practice is to remove debris and correct damages caused by the disaster; and
• Lands on which facilities are located in irrigation canals or facilities that are located on the inside of the canal's banks as long as the canal is not a channel subject to flooding.
In general, ECP funds are held in reserve at the national level and allocated after a natural disaster has occurred and ECP has been authorized. Funds are allocated to FSA State offices based on an estimate of funds needed to begin implementing the program and funding availability. The FSA State offices then allocate funds to the appropriate FSA county offices. The funds are then distributed to owners, operators, and tenants applying for ECP benefits.
Owners, operators, and tenants applying for ECP assistance can receive reimbursement for up to 75 percent of the cost of activities covered under the approved conservation practices. The total cost-share provided to an individual person or entity per natural disaster cannot exceed $200,000. In addition, duplicate payments by rule are prohibited as well as being unnecessary to correct the producer's problem and therefore if payments such as cost-share or other benefits have been provided through other FSA emergency or conservation programs for the same or similar expenses for the same land, then financial assistance cannot be provided through ECP.
Limited resource producers may receive financial assistance for up to 90 percent of the cost of the covered activities. The definition of a “limited resource producer” is:
Any producer with direct or indirect gross farm sales no more than $100,000 in each of the previous two years and has a total household income at or below the national poverty level for a family of four or less than 50 percent of the county median household income in each of the previous two years.
These kinds of determinations are made for other farm programs and they use an index. The process is described at a website used by the Natural Resources and Conservation Service at
FSA reviewed the following alternatives prior to making this decision. The first table describes several alternatives considered, but eliminated from further study and the rationale for their elimination. These alternatives were determined not to be reasonable as explained in the table. The second table shows alternatives determined to be reasonable that were evaluated in detail in the ECP SEIS.
Based upon the analyses and conclusions presented in the Draft and Final SEISs, FSA has identified the Proposed Action as the preferred alternative. Within the context of the Proposed Action's purpose and need, this alternative is both environmentally responsible and reasonable to implement.
Responses to the FSEIS public comments and FSA's analyses supporting this Record of Decision are presented in the following discussion.
A public notice announcing a “Notice of Intent to Prepare an Environmental Impact Statement: Request for Comments” was published in the
Comments were received from two Federal agencies and one State agency. FSA compiled and reviewed all of the comments submitted. Changes to the DSEIS, in response to agency and public comment, included providing consistency in language on the nature of consultation with the U.S. Fish and Wildlife Service (USFWS) under the Endangered Species Act, coordination of FSA personnel with those of the Federal Emergency Management Agency (FEMA) in response to disasters, the potential for certain practices to spread invasive plant species, and the potential that wildlife displaced may not have access to suitable habitat. Substantive comments will be further considered by FSA in the development of future policy; the issues include:
• Removal rather than burial of livestock that died as a result of a disaster,
• Addressing long-term needs with short-term disaster relief efforts, and
• Insect infestations as an addition to the list of eligible disasters.
The FSEIS outlines and compares all of the alternatives potential impacts. Both beneficial and adverse effects were identified for activities authorized by ECP that would now be implemented on the new land categories as described in the Proposed Action. Removing debris, shaping and leveling land, re-establishing vegetation, and restoring conservation structures after a natural disaster, as allowed under the existing ECP would now also have long-term benefits for vegetation and wildlife on timberlands and farmsteads included in the Proposed Action. Re-establishing permanent vegetation and conservation structures would ultimately improve local water quality, reduce soil erosion, and enhance wildlife habitat by promoting biological diversity on these new land categories. Beneficial impacts to surface water quality, groundwater quality, forest health, forest-related resources, floodplains, and wetlands would be realized from implementation of the conservation practices established on farmsteads and timberlands. Re-establishing vegetation, wind control measures, and releveling land would all reduce erosion potential and protect the area from soil loss. Restoration activities that include mechanical removal of debris, using heavy equipment to shape and level land, and ground preparations for installing vegetation, would not be substantially different than similar activities on agricultural lands.
However, wildlife may be temporarily displaced during restoration, or displaced long term until habitat structure is re-established after a disaster. It is possible that due to the scope of the damage caused by a natural disaster that no suitable habitat is nearby, or nearby habitat may already have established wildlife at a capacity that cannot sustain additional animals in the long term. Of the new categories of farmland included in the Proposed Action, timberland has the most potential for having undisturbed land. Establishing access roads and restoration of timberland areas would temporarily remove vegetation in the immediate area and have the potential for spreading invasive plant species. This activity also has the potential to increase soil erosion that may increase sedimentation of nearby waters. The use of heavy machinery, especially in timberland areas, could compact soils, impairing water infiltration and vegetation growth.
The Proposed Action to expand the program eligibility to timberland, farmsteads, and farm buildings would increase the potential for encountering a historic property. The use of heavy equipment could negatively affect historic properties through ground disturbance.
Potential benefits and adverse impacts to these sites would be the same as those described in the current ECP. Most of the above possible adverse impacts may be controlled by employing best management practices that minimize this potential, such as washing equipment before entering or leaving the work area to minimize spreading invasive plant species, ensuring seed mixes do not include invasive or noxious species, controlling access of machinery to the work area, employment of silt fencing, use of vegetative strips to stabilize soil, and stockpiling topsoil for re-use in establishing new vegetation.
Protected species that occur or have the potential to occur in areas approved for ECP would be protected through informal consultation with USFWS during the site-specific environmental evaluation. If impacts are identified, formal consultation with USFWS would be completed.
If negative impacts to listed species are found, it is not likely the land would be approved for ECP. However, FSA would continue to encourage FSA State offices to develop memoranda of understandings with USFWS to expedite reviews at the site specific level.
Under the Proposed Action, expanding the eligibility of ECP allows for the continuation of cost share payments to producers, and allows more producers to apply for assistance.
None of the impacts discussed in the FSEIS are considered significant, and there are no adverse cumulative impacts expected on environmental resources. It is possible to manage most of these concerns and therefore minimize any potentially adverse effects by employing best management practices, and through site specific environmental evaluations for certain practices prior to enrolling particular lands into ECP. Further avoidance, minimization, and mitigation of impacts would be addressed in the Federal and State permitting processes prior to enrolling specific lands. These measures would be incorporated into a conservation plan prior to accepting land proposed for enrollment in ECP.
FSA will implement the Proposed Action as specified in the ECP FSEIS. The Proposed Action alternative allows different types of land to be eligible for ECP benefits, thereby potentially providing producers greater financial assistance. Restoring land to agricultural production after a natural disaster provides long-term benefits to water quality, improves soil stability, restores wildlife habitat, and helps to stabilize the local economy. Any deviation from the Proposed Action alternative and the area of potential effects evaluated in the FSEIS may require supplemental environmental analyses. FSA will ensure that impacts are minimized through a process of completing site-specific environmental evaluations for certain ECP practices for each application.
Agricultural Marketing Service, USDA.
Proposed rule.
The Commodity Promotion, Research, and Information Act of 1996 (Act) authorizes a program of promotion, research, and information to be developed through the promulgation of the Sorghum Promotion, Research, and Information Order (Order). The Act requires that the Secretary of Agriculture (Secretary) conduct a referendum among persons subject to assessments who, during a representative period established by the Secretary, have engaged in the production or importation of sorghum. This proposed rule establishes procedures the Department of Agriculture (USDA) would use in conducting the required referendum as well as future referenda. Eligible persons would be provided the opportunity to vote during a specified period announced by USDA. For the program to continue, it must be approved, with an affirmative vote, by at least a majority of those persons voting who were engaged in the production or importation of sorghum during the representative period.
Comments regarding this proposal must be received by September 14, 2010.
Comments on this proposal must be posted online at
Kenneth R. Payne, Chief, Marketing Programs Branch on 202/720-1115, fax 202/720-1125, or by e-mail at
This proposed rule has been determined not significant for purposes of Executive Order 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the Act provides that the Act shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.
Under section 519 of the Act, a person subject to the Order may file a petition with the Secretary stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order is not established in accordance with the law, and may request a modification of the Order or an exemption from the Order. Any petition filed challenging the Order, any provision of the Order, or any obligation imposed in connection with the Order, shall be filed within 2 years after the effective date of the Order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the Secretary will issue a ruling on the petition. The Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of the Secretary's final ruling.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), USDA is required to examine the impact of this rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened.
The Act, which authorizes USDA to consider industry proposals for generic programs of promotion, research, and information for agricultural commodities, became effective on April 4, 1996. The Act states that Congress found that it is in the national public interest and vital to the welfare of the agricultural economy of the United States to maintain and expand existing markets and develop new markets and uses for agricultural commodities through industry-funded, Government-supervised, commodity promotion programs.
Section 518 of the Act provides three options for determining industry approval or continuation of a new research and promotion program. They are: (1) By a majority of those voting; (2) by a majority of the volume of the agricultural commodity voted in the referendum; or (3) by a majority of those persons voting who also represent a majority of the volume of the agricultural commodity voted in the referendum. In addition, § 518 of the Act provides for referendums to ascertain approval of an Order to be conducted either prior to its going into effect or within 3 years after assessments first begin under an Order. As recommended by representatives of the sorghum industry, the final Order, which was published in the
This proposed rule would establish the procedures USDA would use for the conduct of a nationwide referendum among eligible persons to determine if the Order should be continued. This proposal would add a new subpart that establishes procedures to conduct the initial and future referendum. The new subpart would cover definitions, certification and voting procedures, eligibility, disposition of forms and records, FSA's role, and reporting the results.
According to the 2007 Census of Agriculture, there are approximately 26,000 persons engaged in the production of sorghum who are subject to the program. Most sorghum producers would be classified as small businesses under the criteria established by the Small Business Administration (SBA)(13 CFR 121.201).
In accordance with OMB regulation (5 CFR part 1320) that implements the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) (PRA), AMS received OMB approval for a new information collection for the sorghum program. Upon approval, this collection was merged into the existing collection numbered 0581-0093.
The information collection requirements are minimal. Public reporting burden on producers and importers for this collection of information is estimated to average 0.01 hours per response with an estimated total number of 166 hours and a total cost of $3,079.30. Obtaining a ballot by mail, in-person, facsimile, or via the Internet and completing it in its entirety would not impose a significant economic burden on participants. Accordingly, the Administrator of AMS has determined that this proposed rule will not have a significant economic impact on a substantial number of small business entities.
The Act (U.S.C. 7411-7425), which became effective on April 4, 1996, authorizes USDA to establish generic programs of promotion, research, and information for agricultural commodities designed to strengthen an industry's position in the marketplace and to maintain and expand existing domestic and foreign markets and uses for agricultural commodities. Pursuant to the Act, a proposed Order on the Sorghum Checkoff Program was published in the
This program is funded primarily by those persons engaged in the production of sorghum. Grain sorghum is assessed at a rate of 0.6 percent of net market value received by the producer.
For purposes of this program,
The Act requires that a referendum to ascertain approval of the Order must be conducted either prior to the Order going into effect or within 3 years after assessments first begin. The industry recommended to USDA that the referendum be conducted no later than 3 years after assessments first begin to determine whether the Order should be continued. Assessments began on July 1, 2008. Thus, USDA is required to conduct a nationwide referendum among persons subject to the assessment by July 1, 2011.
On January 25, 2010, the Chairman of the United Sorghum Checkoff Program Board signed a letter requesting that the referendum be completed by March 1, 2011. He observed that there is a large area of sorghum production in South Texas, Louisiana, Arkansas and other southern States that begin planting in March. He noted that by conducting the referendum before March 1, 2011, producers would not have to interrupt planting operations at a critical time to go and vote.
The Order would continue if a majority of those persons voting favor continuing the program. If the continuation of the Order is not approved by eligible persons voting in the referendum, USDA would begin the process of terminating the program.
Eligible persons would be required to complete a ballot in its entirety, vote “yes” or “no” to continue the program, and provide documentation showing that they engaged in the production or importation of sorghum during the representative period. The person would sign the ballot certifying that they were engaged in the production or importation of sorghum during a representative period specified by the Secretary to the best of one's knowledge.
USDA proposes that the representative period for the production or importation of sorghum would be July 1, 2008 through December 31, 2010. USDA also proposes that the ballots may be cast in person, by facsimile, or by mail-in vote at the appropriate county FSA or, for importers, AMS offices. Providing producers an opportunity to vote at the county FSA office and importers through the AMS office would give persons subject to the Order the greatest opportunity to vote in the referendum.
Producers would vote at the county Farm Service Agency (FSA) office where FSA maintains and processes the person's administrative farm records. For those eligible producers not participating in FSA programs, the opportunity to vote would be provided at the county FSA office serving the county where the person owns or rents land. A person engaged in the production of sorghum in more than one county would vote in the county FSA office where the person does most of his or her business. Eligible producer voters can determine the location of county FSA offices by contacting (1) The nearest county FSA office, (2) the State FSA office, or (3) through an online search of FSA's Web site at
Importers would vote by contacting Craig Shackelford, Marketing Programs Branch, Livestock and Seed Program, AMS, USDA, Room 2628-S, STOP 0251, 1400 Independence Avenue, SW., Washington, DC 20250-0251; Telephone: (202) 720-1115; Fax: (202) 720-1125;
The proposed rule establishes procedures USDA would use in conducting the required referendum as well as future referendums provided under the Act. The proposed rule includes definitions, eligibility, certification and voting procedures, reporting results, and disposition of the forms and records.
FSA would coordinate State and county FSA roles in conducting the referendum by (1) Determining producer eligibility, (2) canvassing and counting ballots, and (3) reporting the results. AMS would coordinate importer voting. A 60 day comment period is provided for interested persons to comment.
Administrative practice and procedure, Advertising, Agricultural research, Marketing agreements, Sorghum and sorghum products, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, it is proposed that part 1221, Title 7 of Chapter XI of the Code of Federal Regulations, be amended as follows:
1. The authority citation for 7 CFR part 1221 continues to read as follows:
7 U.S.C. 7411-7425.
2. Subpart B is added to read as follows:
As used throughout this subpart, unless the context otherwise requires, terms shall have the same meaning as
The term
A referendum to determine whether eligible persons favor the continuance of this part shall be carried out in accordance with this subpart.
(a) The referendum will be conducted at county FSA offices for producers and through AMS headquarters offices for importers.
(b) The Secretary shall determine if at least a majority of those persons voting favor the continuance of this part.
The Administrator, AMS, shall be responsible for supervising the process of permitting persons to vote in a referendum in accordance with this subpart.
(a) Any person subject to the assessment who during the representative period determined by the Secretary has engaged in the production or importation of sorghum is eligible to participate in the referendum.
(b)
(c) Any individual, who votes on behalf of any producer or importer entity, shall certify that he or she is authorized by such entity to take such action. Upon request of the county FSA or AMS office, the person voting may be required to submit adequate evidence of such authority.
(d)
(a) The opportunity to vote in the referendum shall be provided during a 4-week period beginning and ending on a date determined by the Secretary. Eligible persons shall have the opportunity to vote following the procedures established in this subpart during the normal business hours of each county FSA or AMS office.
(b) Persons can determine the location of county FSA offices by contacting the nearest county FSA office, the State FSA office, or through an online search of FSA's Web site.
(c) Each eligible producer shall cast a ballot in the county FSA office where FSA maintains the person's administrative farm records. For eligible persons not participating in FSA programs, the opportunity to vote will be provided at the county FSA office serving the county where the person owns or rents land. A person engaged in the production of sorghum in more than one county will vote in the county FSA office where the person does most of his or her business.
(d) Each eligible importer would cast a ballot in the Marketing Programs Branch, Livestock and Seed Program, AMS, USDA, Room 2628-S, STOP 0251, 1400 Independence Avenue, SW., Washington, DC 20250-0251; Telephone: (202) 720-1115; Fax: (202) 720-1125.
Each county FSA office will provide:
(a) A voting place that is well known and readily accessible to persons in the county and that is equipped and
(b) A holding container of sufficient size so arranged that no ballot or supporting documentation can be read or removed without breaking seals on the container.
Form LS-379 shall be used to vote in the referendum and certify eligibility. Eligible persons will be required to complete a ballot in its entirety, vote “yes” or “no” to continue the program and provide documentation such as a sales receipt or remittance form showing that the person voting was engaged in the production of sorghum during the representative period. The person or authorized representative shall sign the ballot certifying that they or the entity they represent were engaged in the production of sorghum during the representative period.
(a) Each eligible person shall be provided the opportunity to cast a ballot during the voting period announced by the Secretary.
(1) Each eligible person shall be required to complete Form LS-379 in its entirety, sign it and, provide evidence that they were engaged in the production or importation of sorghum during the representative period. The person must legibly place his or her name and, if applicable, the entity represented, address, county and, telephone number. The person shall sign and certify on Form LS-379 that:
(i) The person was engaged in the production or importation of sorghum during the representative period;
(ii) The person voting on behalf of a corporation or other entity is authorized to do so;
(iii) The person has cast only one vote; and
(2) Only a completed and signed Form LS-379 accompanied by supporting documentation showing that the person was engaged in the production or importation of sorghum during the representative period shall be considered a valid vote.
(b) To vote, eligible producers may obtain Form LS-379 in-person, by mail, or by facsimile from county FSA offices or through the Internet during the voting period. A completed and signed Form LS-379 and supporting documentation, such as a sales receipt or remittance form, must be returned to the appropriate county FSA office where FSA maintains and processes the person's administrative farm records. For a person not participating in FSA programs, the opportunity to vote in a referendum will be provided at the county FSA office serving the county where the person owns or rents land. A person engaged in the production of sorghum in more than one county will vote in the county FSA office where the person does most of his or her business. A completed and signed Form LS-379 and the supporting documentation may be returned in-person, by mail, or facsimile to the appropriate county FSA office. Form LS-379 and supporting documentation returned in-person or by facsimile, must be received in the appropriate county FSA office prior to the close of the work day on the final day of the voting period to be considered a valid ballot. Form LS-379 and the accompanying documentation returned by mail must be postmarked no later than midnight of the final day of the voting period and must be received in the county FSA office on the 5th business day following the final day of the voting period. To vote, eligible importers may obtain Form LS-379 in-person, by mail or, by facsimile from AMS offices or through the Internet during the voting period. A completed and signed Form LS-379 and supporting documentation, such as a Customs and Border Protection form 7501, must be returned to the from the AMS headquarters office.
(c) A completed and signed Form LS-379 and the supporting documentation may be returned in-person, by mail, or facsimile to the appropriate county FSA office for producers and to AMS office for importers. Form LS-379 and supporting documentation returned in-person or by facsimile, must be received in the appropriate county FSA office for producers or the AMS office for importers prior to the close of the work day on the final day of the voting period to be considered a valid ballot. Form LS-379 and the accompanying documentation returned by mail must be postmarked no later than midnight of the final day of the voting period and must be received in the county FSA office for producers and the AMS office for importers on the 5th business day following the final day of the voting period.
(d) Persons who obtain Form LS-379 in-person at the appropriate FSA county office may complete and return it the same day along with the supporting documentation. Importers who obtain Form LS-379 in-person at the appropriate AMS office may complete and return it the same day along with the supporting documentation.
(a) Canvassing of Form LS-379 shall take place at the appropriate county FSA offices or AMS office on the 6th business day following the final day of the voting period. Canvassing of producer ballots shall be in the presence of at least two members of the county committee. If two or more of the counties have been combined and are served by one county office, the canvassing of the requests shall be conducted by at least one member of the county committee from each county served by the county office. The FSA State committee or the State Executive Director, if authorized by the State Committee, may designate the County Executive Director (CED) and a county or State FSA office employee to canvass the ballots and report the results instead of two members of the county committee when it is determined that the number of eligible voters is so limited that having two members of the county committee present for this function is impractical, and designate the CED and/or another county or State FSA office employee to canvass requests in any emergency situation precluding at least two members of the county committee from being present to carry out the functions required in this section.
(b) Canvassing of importer ballots will be performed by AMS personnel or any other person as deemed necessary.
(c) Form LS-379 should be canvassed as follows:
(1)
(2)
(d)
(e)
(1) Form LS-379 is not signed or all required information has not been provided;
(2) Form LS-379 and supporting documentation returned in-person or by facsimile was not received by close of business on the last business day of the voting period;
(3) Form LS-379 and supporting documentation returned by mail was not postmarked by midnight of the final day of the voting period;
(4) Form LS-379 and supporting documentation returned by mail was not received in the county FSA or AMS office by the 5th business day following the final day of the voting period;
(5) Form LS-379 or supporting documentation is mutilated or marked in such a way that any required information on the Form is illegible; or
(6) Form LS-379 and supporting documentation not returned to the appropriate county FSA or AMS office.
(a) Form LS-379 shall be counted by county FSA offices or the AMS office on the same day as the ballots are canvassed if there are no ineligibility determinations to resolve. For those county FSA offices that do have ineligibility determinations, the requests shall be counted no later than the 14th business day following the final day of the voting period.
(b) Ballots shall be counted as follows:
(1) Number of valid ballots cast;
(2) Number of persons favoring the Order;
(3) Number of persons not favoring the Order;
(4) Number of invalid ballots.
The county FSA office report shall be certified as accurate and complete by the CED or designee, acting on behalf of the Administrator, AMS, as soon as may be reasonably possible, but in no event shall submit no later than the 18th business day following the final day of the specified period. Each county FSA office shall transmit the results in its county to the FSA State office. The results in each county may be made available to the public upon notification by the Administrator, FSA, that the final results have been released by the Secretary. A copy of the report shall be posted for 30 calendar days following the date of notification by the Administrator, FSA, in the county FSA office in a conspicuous place accessible to the public. One copy shall be kept on file in the county FSA office for a period of at least 12 months after notification by FSA that the final results have been released by the Secretary.
Each FSA State office shall transmit to the Administrator, FSA, as soon as possible, but in no event later than the 20th business day following the final day of the voting period, a report summarizing the data contained in each of the reports from the county FSA offices. One copy of the State summary shall be filed for a period of not less than 12 months after the results have been released and available for public inspection after the results have been released.
(a) The Administrator, FSA, shall submit to the Administrator, AMS, reports from all State FSA offices. The Administrator, AMS shall tabulate the results of the ballots. USDA will issue an official press release announcing the results of referendum and publish the same results in the
(b) If the Secretary deems necessary, a State report or county report shall be reexamined and checked by such persons who may be designated by the Secretary.
Each FSA CED will place in sealed containers marked with the identification of the “Sorghum Checkoff Program Referendum,” all of the Forms LS-379 along with the accompanying documentation and county summaries. Such records will be placed in a secure location under the custody of FSA CED for a period of not less than 12 months after the date of notification by the Administrator, FSA, that the final results have been announced by the Secretary. If the county FSA office receives no notice to the contrary from the Administrator, FSA, by the end of the 12 month period as described above, the CED or designee shall destroy the records.
The Administrator, AMS, is authorized to prescribe additional instructions and forms not inconsistent with the provisions of this subpart.
The names of persons voting in the referendum and ballots shall be confidential and the contents of the ballots shall not be divulged except as the Secretary may direct. The public may witness the opening of the ballot box and the counting of the votes but may not interfere with the process.
Commodity Credit Corporation and Farm Service Agency, USDA.
Proposed rule.
The Commodity Credit Corporation (CCC) proposes regulations to implement the new Asparagus Revenue Market Loss Assistance Payment (ALAP) Program authorized by the Food, Conservation, and Energy Act of 2008 (the 2008 Farm Bill). The purpose of the program is to compensate domestic asparagus producers for marketing losses resulting from imports during the 2004 through 2007 crop years. Payments will be calculated based on 2003 crop production. Through the ALAP Program, CCC is authorized to provide up to $15 million in direct payments to asparagus producers. This rule proposes eligibility requirements, payment application procedures, and the method for calculating individual payments. This rule also proposes new information collection for the payment application.
We will consider comments that we receive by September 14, 2010.
We invite you to submit comments on this proposed rule and on the information collection. In your comment, include the volume, date, and page number of this issue of the
• E-mail:
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•
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All written comments will be available for public inspection at the above address during business hours from 8 a.m. to 5 p.m., Monday through Friday. A copy of this proposed rule is available through the FSA home page at
Gene Rosera, Program Manager, FSA, USDA, Mail Stop 0512, 1400 Independence Ave., SW., Washington, DC 20250-0512; telephone (202) 720-8481; fax (202) 690-1536; e-mail:
Section 10404 of the 2008 Farm Bill (Pub. L. 110-246) directs the Secretary of Agriculture to “make payments to producers of the 2007 crop of asparagus for market loss resulting from imports during the 2004 through 2007 crop years.” The 2008 Farm Bill provides that the payment rate will be based on the reduction in asparagus farm revenue for the 2004 through 2007 crop years. The payment quantity will be the quantity of the 2003 crop of asparagus produced on a farm, which is used as the “baseline” production amount before the losses in 2004 through 2007 occurred. The ALAP Program specified in this rule would provide a one-time payment for the losses.
Asparagus is produced on an estimated 2,600 farms throughout the United States. A substantial increase in asparagus imports over the last several years resulted in reduced revenue for U.S. asparagus producers. The increased supply of imported asparagus resulted in reduced domestic production, reduced U.S. market share of domestic producers, and reduced market prices for both fresh and processed asparagus in the United States. The ALAP Program is intended to compensate producers for the losses associated with those reductions.
This rule proposes to add 7 CFR part 1429 to specify the eligibility requirements, payment rates, and other provisions for the ALAP Program. The ALAP Program is a CCC program that will be administered by FSA.
The eligibility requirements in this proposed rule are based on provisions in the 2008 Farm Bill. To be eligible for ALAP as proposed in this rule, producers must:
(1) Have produced asparagus in the United States during both crop years 2003 and 2007;
(2) Certify production of fresh or processed asparagus or both for the 2003 and 2007 crop years; and
(3) Apply for payment during the application period that will be announced by the FSA Deputy Administrator for Farm Programs.
Payments to asparagus producers would be calculated for each asparagus farm operation, based on their 2003 production quantity. Each applicant would be paid based on the applicant's share of specific asparagus production in the base period.
Payment eligibility for the ALAP Program will not be subject to adjusted gross income (AGI) and farm income limitations as currently specified in 7 CFR part 1400, because the payment is for the 2007 crop. However, to insure a fair distribution of funds where the need is greatest in the event of an oversubscription (a situation where the value of the applications would exceed available funding), an AGI limit of $2.5 million and a $100,000 cap on payments is proposed. This program is not expected, with respect to the authorized funding, to be sufficient to pay all eligible claims at the maximum payment rates. Without the cap, all or most of the funds would go, in terms of substantial amounts, to large producers only. The figure of $100,000 was chosen because it provides a substantial level of benefits to those who might otherwise have larger claims. However, in the unlikely event that this program is not oversubscribed, the AGI and pay limits will not apply.
Asparagus producers must have been in compliance with the regulations in 7 CFR part 12, “Highly Erodible Land and Wetland Conservation,” during the years for which the person is requesting benefits. Those regulations provide for a denial of benefits for failing to comply with general requirements regarding the handling of highly erodible cropland and wetlands.
Growers producing asparagus under contract for crop owners are not considered asparagus producers for the purposes of the ALAP Program and will not be eligible for payments unless the grower has an ownership share of the crop and risk of loss in the crop itself, meaning that the producer will not be paid if the crop is not actually harvested. The crop owner, which is to say the person or entity with the risk of loss in the crop, will be eligible for payment if all other requirements are met.
As proposed in this rule, asparagus producers who produced asparagus in 2003 and 2007 would receive a payment based on their 2003 crop production (referred to as the “base period”). The rule requires that the producer must have been a 2007 producer to be eligible for payment on asparagus produced in the base period and have produced asparagus for the commercial market in commercial quantities in 2007. The quantity used in the payment calculation would be the actual 2003 production amount marketed by the asparagus producer as either fresh or processed asparagus and included in the application.
Section 10404 of the 2008 Farm Bill requires that the payment quantity for asparagus for which asparagus producers on a farm are eligible for payments will “be equal to the average quantity of the 2003 crop of asparagus produced by producers on the farm.” “Average quantity” is not defined in the 2008 Farm Bill and use of national or State averages would not appear to be logical or consistent with the language of the 2008 Farm Bill. In this rule it is proposed instead that producers would simply receive their actual production on the farm and this would mean use of an “average” in the sense that operations with multiple producers would have individual producers receive their share of the production rather than duplicating base period quantities. This appears to make the most sense in the context of the 2008 Farm Bill. Using national or State average production rates would not reflect the relative amount of any individual producer's loss and would not accurately reflect the reference to the “farm” in the language in section 10404. As for the payment, the 2008 Farm Bill specifies that the rate, within the funding limits, will be based on “the reduction in revenue received by asparagus producers associated with imports during the 2004 through 2007 crop years.” The 2008 Farm Bill does not specify how CCC should determine revenue losses, but by an economic analysis CCC has calculated the amount of relevant loss per pound, as an average, for the 2004 to 2007 crop years as compared to the 2003 crop year. However, it is expected that this calculation would not result in the actual payment rate because it would produce payments that would aggregate to more than the funding
CCC has determined that the total domestic production of asparagus for the 2003 crop was 133.4 million pounds marketed as fresh, and 68.0 million pounds marketed as processed. Based on analysis of both reduced production and reduced prices due to imports for the 2004 through 2007 crop years, the estimated revenue loss was $1.06 per pound of fresh asparagus and $1.08 per pound of processed asparagus; therefore, these would be considered the maximum payment rates, if funds were adequate to cover all applications. The maximum payment rates are different for fresh and processed asparagus because the differences in production and demand elasticities by marketing category result in different revenue effects from imports. Fresh asparagus accounted for approximately 66 percent of total 2003 asparagus production and 75 percent of the total estimated monetary loss over the 2004-2007 crops.
As explained below, it is unlikely that there will be funds available to compensate producers at the maximum payment rates, unless very few producers apply for the ALAP Program. Therefore, the amounts identified as maximum payment rates are over estimates. The 2008 Farm Bill allocates exactly one half of the $15 million available for the ALAP Program to each marketing category (fresh and processed). The rate determination process we propose in this rule would be implemented as follows:
Step 1: At the close of the announced application period, the total payment quantity from all eligible producers would be determined. Potential maximum payments to eligible producers would be calculated by separately multiplying the total eligible payment quantity in pounds by the maximum payment rates for fresh asparagus and processed asparagus.
Step 2: If the total amount of available funding allocated for each marketing category of asparagus is insufficient to compensate eligible producers for their eligible payment quantity at the maximum payment rates, then CCC would recalculate the payment rates determined by dividing the funds available, less a $300,000 reserve for disputed claims, by total nationwide payment quantities for fresh and processed asparagus.
Step 3: CCC would pay producers using the applicable payment rate multiplied by their individual share in the actual 2003 production quantity, by marketing category, subject to the $100,000 cap if there is an oversubscription of the program.
CCC estimates that if payment applications were submitted for 90 percent of the total quantity of the 2003 crop, the total value of requested payments would substantially exceed the level of funds available for payments. Multiplying 90 percent of the estimated 2003 crop production quantities by the estimated revenue loss per pound would result in the following estimated total payment amounts:
• Potential Requested Fresh Market Payments:
○ 133,400,000 lbs × 90 percent × $1.06/lb. = $127,263,600,
○ $119,763,600 over the allocated funding level, and
• Potential Requested Processed Market Payments:
○ 68,000,000 lbs × 90 percent × $1.08/lb. = $66,096,000,
○ $58,576,000 over the allocated funding level.
Based on the 90 percent examples, the estimated payment rate for fresh-market payments would be 6.12 cents per pound and the processed market payment rate would be 12.00 cents per pound. This would result in the following payments, leaving $300,000 in reserve funds:
• Fresh Market Payments: 120,060,000 lbs × 6.12 cents/lb. = $7,347,672
• Processed Market Payments: 61,200,000 lbs × 12.00 cents/lb. = $7,344,000.
CCC proposes to establish and announce a 30-day period for submitting payment applications for the ALAP Program. The application deadline will be announced in the final rule that will be published in the
Any applications not received by FSA by the last day of the application period would not receive consideration and producers on a late application would be ineligible for payment. A deadline for applications is necessary because CCC needs to know the total value of requested payments in order to calculate the payment rates to stay within available funding. The ALAP Program provides a one-time payment for asparagus market losses; the 2008 Farm Bill does not authorize annual appropriations for the ALAP Program. Therefore, there will be one application period for the ALAP Program.
CCC proposes to hold in reserve $300,000 for errors and appeals; however, these reserve funds are only intended for corrections and payments for disapproved applications that are successfully appealed. Although CCC has discretion to grant relief and accept a late-filed application as timely filed, the late-filed application so approved would only be paid if there are available non-reserve funds. CCC does not expect that there will be any non-reserve funds available because the total expected applications are anticipated to use all available funds.
The 2008 Farm Bill ties the payments to 2003 production quantities. The application would require a producer to submit a certification of 2003 asparagus production and a certification that the same producer was also a producer of asparagus on a farm in 2007. Asparagus producers would need to provide acceptable production records for 2003 asparagus production, if requested. Applicants would not be required to submit 2007 production records because 2007 production would not be used in the calculation of payment quantity or rate. However, at the discretion of CCC, certifications of producer eligibility, including, but not limited to, certification of an interest in 2007 asparagus production on a farm, are subject to spot check and verification by CCC. The producer's place of production does not have to be the same in 2007 as it was in 2003. Production
Information provided on applications and supporting documentation will be subject to verification by CCC; however, CCC is under no obligation to perform spot checks within any specific time frame and applicants are responsible for producing documents substantiating their application when requested by CCC.
In the event that CCC finds that a payment was issued based on inaccurate information on a certification submitted by an applicant, CCC may require a refund of all payments.
Asparagus producers determined to have made any false certifications or adopted any misrepresentation, scheme, or device that defeats the program's purpose will be required to refund any payments issued through the ALAP Program with interest, and may be subject to other civil, criminal, or administrative remedies.
Asparagus producers who apply for payment will receive payment only for their share of asparagus production in asparagus operations that operated in the 2003 base period. If every asparagus producer with a share in the asparagus farm operation does not sign the application; payments will not be calculated for the entire production of the asparagus farm operation, but will be calculated only for the share of the asparagus producers who signed the application. Similarly, if every producer with a share in the operation does not meet the eligibility requirements including the AGI limit, payments will not be calculated for the entire production of the operation, but will be calculated only for the share of the producers who meet the AGI and all other eligibility requirements.
The Administrative Procedures Act (5 U.S.C. 553) provides generally that before rules are issued by Government agencies, a proposed rule must be published in the
This proposed rule has been determined to be significant under E.O. 12866 and has been reviewed by the Office of Management and Budget. A summary of economic impacts is provided below, and the cost-benefit analysis is available from the contact information listed above.
The 2008 Farm Bill authorizes $15 million in payments to asparagus producers for losses that asparagus producers sustained due to imports. The estimated U.S. asparagus revenue losses due to crop year 2004 through 2007 imports in the fresh market totaled $141.6 million, and in the processed market, $73.3 million, for a total of $214.9 million in losses. Therefore, we expect to receive applications that exceed the available funding. The payment rates would be calculated so as not to exceed the available funding. The expected benefit to producers is $15 million, which is all of the available funding. Since producers are being paid for past losses on past production, this program is not expected to increase production of asparagus or to change the price that consumers pay for asparagus.
Alternative methods for calculating payment quantities and rates would result in a different distribution of payment amounts among producers, but would not reduce the costs or benefits of this program to below $15 million.
According to the 2007 Census of Agriculture, there are 2,605 asparagus farms, with 1,408 of those farms harvesting 1 acre or less. Those farms harvesting 100 acres or more account for 5 percent of farms harvesting asparagus and 74 percent of all asparagus production. Most of the payments as specified in this rule would go to the larger farms that accounted for most of the production, rather than the smaller farms. CCC is proposing to calculate and disburse payments based on the actual 2003 crop production quantities for fresh and processed marketing. Both small and large farms would receive payment in proportion to their production, subject to the $100,000 cap that will impact only the largest farms. Direct and indirect costs of applying for these one-time payments would likely to be very small as a percentage of the resulting payment. The minimal regulatory requirements would impact large and small businesses equally, and the program's benefits should slightly improve cash flow and liquidity for farmers participating in the program. Therefore, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601), CCC is certifying that there would not be a significant economic impact on a substantial number of small entities. Due to the limited amount of funding available, payments are unlikely to have a substantial economic impact on entities of any size.
The environmental impacts of this rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations for compliance with NEPA (7 CFR part 799). The implementation and administration of ALAP Program required by the 2008 Farm Bill that is identified in this rule is non-discretionary in nature, solely providing financial assistance. Therefore, FSA has determined that NEPA does not require that an environmental assessment or environmental impact statement be prepared and neither will be prepared.
For reasons set forth in the Notice to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
This rule has been reviewed under Executive Order 12988. The provisions of this proposed rule will not have preemptive effect with respect to any State or local laws, regulations, or policies that conflict with such provision or which otherwise impede their full implementation. The rule will not have retroactive effect. Before any judicial action may be brought regarding this rule, all administrative remedies must be exhausted.
The policies contained in this rule would not have any substantial direct effect on States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. Nor would this
The policies contained in this rule do not impose substantial unreimbursed direct compliance costs on Indian tribal governments or have tribal implications that preempt tribal law.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This proposed rule contains no Federal mandates, as defined under title II of the UMRA, for State, local, and tribal governments or the private sector. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of UMRA.
The title and number of the Federal assistance program in the Catalog of Domestic Federal Assistance to which this rule will apply is 10.098—Asparagus Revenue Market Loss Assistance Program.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), CCC is requesting comments from all interested individuals and organizations on new information collection activities associated with the ALAP Program. The information collection is necessary to implement the new program. CCC is making payments to eligible domestic asparagus producers for marketing losses due to imports during the 2004 through 2007 crop years.
For an application to be accepted and approved, the producer will be required to provide the following information: producer name, address, and taxpayer identification number; the name and location of the farm where 2003 crop asparagus was produced, the amount of asparagus produced in 2003, and a certification of interest in a farm where 2007 crop asparagus was produced; the applicant signature; the applicant's percentage share of 2003 crop asparagus production on the farm; the quantities expressed in pounds or hundredweight of 2003 crop asparagus marketed as fresh and marketed as processed, and the total of those two amounts.
Also, about 700 applicants are expected to complete a direct deposit application form, and all producers, if not submitting electronically, will travel an average of one hour to submit their application to the FSA county office. The average travel time is included in the estimated burden.
The following estimated burden is based on the 2007 Census of Agriculture that reports 2007 crop asparagus was produced on 2,605 farms in 48 States reporting harvested acreage of 43,010 acres. The major producing states were California (20,211 harvested acres); Michigan (12,127 harvested acres); and Washington (7,007 harvested acres). That Census reports that 11 States had 10 acres or less harvested that year. Based on information provided by the asparagus industry, there are about 1.1 producers per asparagus farm, or approximately 2,800 producers each having a crop share. These data serve as basis for the following estimates.
We are requesting comments on all aspects of the information collection to help us to:
(1) Evaluate whether the collection of information is necessary for the proper administration of FSA, including whether the information will have practical utility;
(2) Evaluate the accuracy of FSA's estimate of burden, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who will respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms or information collection.
All comments received in response to this rule, including names and addresses when provided, will be a matter of public record and will be available for review at the above address. Comments, including any comments that are received on the information collection, will be summarized in the submission for the Office of Management and Budget approval and included as supplemental information when the final rule is published in the
CCC is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government Information and services, and for other purposes.
Asparagus, Reporting and record keeping requirements.
For the reasons discussed in the preamble, the Commodity Credit Corporation (USDA) proposes to add 7 CFR part 1429 to read as follows:
15 U.S.C. 714b and 714c, and Sec. 10404, Pub. L. 110-246, 122 Stat. 2111.
(a) The regulations in this part are applicable to program applicants who produced both 2003- and 2007-crop asparagus. Asparagus producers may apply to the Commodity Credit Corporation (CCC) for a payment based on the actual quantity of their 2003 asparagus production and their share of that production.
(b) Total payments made through the Asparagus Revenue Marketing Loss Assistance Payment Program will not exceed $15 million, allocated as $7.5 million for fresh asparagus and $7.5 million for processed asparagus, less any reserve allocated for disputed claims.
(a) The Asparagus Revenue Market Loss Assistance Payment Program will be administered under the general supervision of the Executive Vice President, CCC (Administrator, Farm Service Administration (FSA)), or a designee, and will be carried out in the field by FSA State and county committees and FSA employees.
(b) FSA State and county committees, and representatives and employees of those committees, do not have the authority to modify or waive any of the provisions of this part, except as provided in paragraph (e) of this section.
(c) The FSA State committee will take any action required by this part that has not been taken by the FSA county committee. The FSA State committee will also:
(1) Correct or require correction of an action taken by an FSA county committee that is not in compliance with this part; and
(2) Require an FSA county committee to not take an action or implement a decision that is not in compliance with the regulations of this part.
(d) No delegation in this part to an FSA State or county committee will preclude the Executive Vice President, CCC, or a designee, from determining any question for the Asparagus Revenue Marketing Loss Assistance Payment Program, or from reversing or modifying any determination made by a State or county committee.
(e) The Deputy Administrator for Farm Programs, FSA, may authorize FSA State and county committees to waive or modify program requirements that are not statutory in cases where failure to meet such requirements does not adversely affect the operation of the Asparagus Revenue Market Loss Assistance Payment Program.
The following definitions apply to this part. The definitions in parts 718 and 1400 of this title also apply, except where they conflict with the definitions in this section.
(a) To be eligible for payment, asparagus producers must submit a completed application for payment and meet other eligibility requirements as specified in this part. Asparagus producers may obtain an application in person, by mail, by telephone, or by facsimile from any FSA county office. In addition, applicants may download a copy of the application from
(b) An application for payment must be submitted on a completed application form. Applications and any other supporting documentation must be submitted to the FSA county office serving the county in which the producer produced asparagus in 2003 unless the producer now resides in a different county than the county in which asparagus was produced in the base period.
(c) Asparagus producers who apply for payment must certify the information on the application before the application will be considered complete. Applications may be accompanied by acceptable production records for all fresh and processed asparagus produced and marketed from the farm in the 2003 crop year. Producers must certify they had a share interest in both 2003 and 2007 crop
(1) Reported production of 2003 crop fresh or processed asparagus production or both entered on the application accompanied by acceptable production record,
(2) Share percentage of 2003 crop production by marketing category for each producer in the asparagus farm operation, or
(3) Any other eligibility requirement specified in this part including commercial quantities of 2007 production to meet the 2007 production requirement.
(d) Each asparagus producer who signs the application must certify the accuracy and truthfulness of the information in the application and any supporting documentation. All information provided is subject to verification by CCC. Refusal to allow CCC or any other agency of USDA to verify any information provided will result in a denial of eligibility. Furnishing the information is voluntary; however, without it program payments will not be approved. Providing a false certification may be punishable by imprisonment, fines, and other penalties or sanctions.
(e) Data furnished by the applicants will be used to determine eligibility for program payments. Although participation in the Asparagus Revenue Market Loss Assistance Payment Program is voluntary, program payments will not be provided unless the participant furnishes a complete application by the end of the application period with all requested data.
(f) Individuals or entities who submit applications after the application period are not entitled to any payment consideration or determination of eligibility. Regardless of the reason why an application is not submitted to or received by the FSA county office, any late application will be considered as not having been timely filed and the applicants on that application will not be eligible for the Asparagus Revenue Marketing Loss Assistance Payment Program.
(a) To be eligible to receive the Asparagus Revenue Marketing Loss Assistance Payment Program payments, asparagus producers must submit an application during the application period and must:
(1) Have produced and marketed asparagus in commercial quantities in commercial markets in the United States during both of the 2003 and 2007 crop years;
(2) Be an asparagus producer, as defined in § 1429.103, for the 2003 and 2007 crop years;
(3) Certify their shares and the pounds of fresh and processed asparagus produced and marketed from the farm operation during the 2003 crop year as reflected on the application;
(4) If the total value of payments claimed exceeds the available funding, have an average adjusted gross income (AGI) of less than $2.5 million for the three taxable years of 2004-2006; and
(5) Be in compliance with the requirements in 7 CFR part 12 regarding highly erodible cropland and wetlands and meet any general farm program eligibility requirements that apply under 7 CFR part 1400 or other regulations as applicable.
(b) Asparagus producers must sign an application to be considered for payment eligibility. Asparagus producers who do not sign an application will not receive payment or a determination of eligibility, even if other producers in the asparagus farm operation sign an application and receive payment.
(c) Each applicant determined by spot check or other information to not have an interest as an asparagus producer in 2003 and 2007 who meets the other qualifications of this part will be ineligible for payment and such applicant's claimed share shown on the application will not be paid.
(a) Producers selected for spot check by CCC must, in accordance with instructions issued by the Deputy Administrator or his designee, provide adequate proof of the fresh and processed asparagus produced and marketed during the 2003 and 2007 crop years.
(b) If adequate proof of marketed production and supporting documentation in support of any application for payment is not presented to the satisfaction of CCC or the FSA county office requesting information, the application and the producers on that application will be determined ineligible for payment.
(a) Subject to the funding limits that may apply to the program, the estimated maximum per pound payment rates for fresh market asparagus and for processed market asparagus are:
(1) $1.06 per pound ($106.00 per hundredweight) for 2003 crop quantities of asparagus marketed to fresh markets; and
(2) $1.08 per pound ($108.00 per hundredweight) for 2003 crop quantities of asparagus marketed for processing.
(b) This program will be administered to assure that total payments do not exceed the available funding. If the total value of payments claimed calculated using the maximum payment rates specified in paragraph (a) of this section exceeds the funding available for each marketing category, less any reserve that may be created as specified in paragraph (e) of this section, the payment quantities will be paid at a lower rate determined by dividing the funds available in each marketing category of asparagus, by the payment quantity from applications received by the end of the application period in each marketing category.
(c) In no event will the payment rate exceed the maximum payment rate for each marketing category of asparagus determined in paragraph (a) of this section.
(a) Producers will be eligible for payment for both fresh and processed asparagus. CCC will calculate the payment quantity of 2003 fresh and processed asparagus for an asparagus farm operation based on the lower of:
(1) Reported production reflected on the application, or
(2) If applicable, determined production.
(b) The payment quantity will be multiplied by the following:
(1) Each asparagus producer's share, and
(2) The payment rate for the fresh or processed asparagus determined as specified in § 1429.107.
(c) If the total value of payments claimed exceeds the available funding, payments to producers are subject to a $100,000 cap per asparagus producer as defined in this part, not per “person” or “legal entity” as those terms might be defined in part 1400 of this title.
(a) Payments specified in this part are subject to the availability of funds. The total available program funds will be $15,000,000 as provided by section 10404 of Pub. L. 110-246.
(b) Of the available funds, $7,500,000 are allocated for fresh market asparagus production and $7,500,000 are allocated to processed market asparagus.
(c) CCC will prorate the available funds by a national factor to ensure that payments do not exceed $15,000,000. CCC will prorate the payments in such manner as it, in its sole discretion, finds fair and reasonable.
(d) A reserve will be created to handle appeals and errors. Claims will not be payable once the available funding is expended. Any amount of funds reserved for such purposes that are not disbursed for the purpose of correcting errors or omissions, or for the payment of appeals, will not otherwise be distributed to any payment applicants and will be refunded to the U.S. Department of Treasury.
(a) In addition to other penalties, sanctions, or remedies as may apply, an asparagus producer will be ineligible to receive assistance through the Asparagus Revenue Market Loss Assistance Payment Program if the asparagus producer is determined by CCC to have:
(1) Adopted any scheme or device that tends to defeat the purpose of this program;
(2) Made any fraudulent representation; or
(3) Misrepresented any fact affecting a program determination.
(b) Any funds disbursed pursuant to this part to any person or operation engaged in a misrepresentation, scheme, or device, must be refunded with interest together with such other sums as may become due and all charges including interest will run from the date of the disbursement of the CCC funds. Any asparagus farm operation, asparagus producer, or person engaged in acts prohibited by this section and any asparagus farm operation, asparagus producer, or person receiving payment as specified in this part will be jointly and severally liable with other persons or operations involved in such claim for payment for any refund due as specified in this section and for related charges. The remedies provided in this part will be in addition to other civil, criminal, or administrative remedies that may apply.
(a) In the case of death, incompetency, disappearance, or dissolution of a person or an entity that is eligible to receive payment as specified in this part, an alternate person or persons as specified in part 707 of this title may receive such payment, as determined appropriate by CCC.
(b) Payment may be made for asparagus market losses suffered by an otherwise eligible asparagus producer who is now deceased or is a dissolved entity if a representative who currently has authority to enter into an application for the producer or the producer's estate signs the application for payment. Proof of authority to sign for the deceased producer's estate or a dissolved entity must be provided. If an asparagus producer is now a dissolved general partnership or joint venture, all members of the general partnership or joint venture at the time of dissolution or their duly-authorized representatives must sign the application for payment.
Producers applying for payment through the Asparagus Revenue Market Loss Assistance Payment Program must maintain records and accounts to document all eligibility requirements specified in this part. Such records and accounts must be retained for 3 years after the date of payment.
(a) Excess payments, payments provided as the result of erroneous information provided by any person, or payments resulting from a failure to comply with any requirement or condition for payment in the application or this part, must be refunded to CCC.
(b) A refund required as specified in this section will be due with interest from the date of CCC disbursement and determined in accordance with paragraph (d) of this section and late payment charges as provided in part 1403 of this chapter.
(c) Persons signing an asparagus farm operation's application as having an interest in the asparagus farm operation will be jointly and severally liable for any refund and related charges found to be due as specified in this section.
(d) Interest will be applicable to any refunds required as specified in parts 792 and 1403 of this title. Such interest will be charged at the rate that the U.S. Department of the Treasury charges CCC for funds, and will accrue from the date CCC made the erroneous payment to the date of repayment.
(e) CCC may waive the accrual of interest if it determines that the cause of the erroneous determination was not due to any action of the person, or was beyond the control of the person committing the violation. Any waiver is at the discretion of CCC alone.
(a)
(b)
(c)
(d)
(e)
Nuclear Regulatory Commission.
Proposed rule; withdrawal.
The U.S. Nuclear Regulatory Commission (NRC) is withdrawing a proposed rule that would have revised the NUHOMS
The proposed rule published May 7, 2010 (75 FR 25120), is withdrawn.
Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6219, e-mail
On May 7, 2010 (75 FR 25120), the NRC published in the
The rulemaking is being withdrawn because the applicant identified that a certain TS for Boral characterization was not written precisely and in a manner that could be readily and demonstrably implemented. Specifically, the requirements for meeting TS 4.3.1, “Neutron Absorber Tests,” which references Section 9.1.7.3 of the SAR, are not precisely quantified in that it requires that “the average size of the boron carbide particles in the finished product is approximately 50 microns after rolling.” Use of language such as “average” and “approximately” is imprecise, and no ranges or statistical variations are specified. The NRC will publish a revised direct final rule along with its companion proposed rule after the necessary revisions to the TS are made.
For the Nuclear Regulatory Commission.
Department of Energy.
Proposed rule.
This proposed rule would establish standards and procedures by which the U.S. Department of Energy (DOE) may require that certain contracts or orders that promote the national defense be given priority over other contracts or orders. This rule also sets new standards and procedures by which DOE may allocate materials, services and facilities to promote the national defense. DOE is publishing this rule to comply with a requirement of the Defense Production Act Reauthorization of 2009 (Pub. L. 111-67) to publish regulations providing standards and procedures for prioritization of contracts and orders and for allocation of materials, services and facilities to promote the national defense.
Comments must be received by August 16, 2010.
You may submit comments, identified by RIN 1901-AB28, by any of the following methods:
•
• By e-mail directly to
• By mail or delivery to Dr. Kenneth Friedman, Office of Infrastructure Security and Energy Restoration, U.S. Department of Energy, Room 1E-256, 1000 Independence, Avenue, SW., Washington, DC 20585.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Dr. Kenneth Friedman (
Dr. Kenneth Friedman, Office of Infrastructure Security and Energy Restoration, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585; (202) 536-0379 (
This rule expands upon Title 10 of the Code of Federal Regulations (10 CFR) part 216, DOE Energy Priorities and Allocations System (EPAS) regulations.
10 CFR part 216 implements DOE's administration of priorities and allocations actions in order to maximize domestic energy supplies pursuant to its authority under Section 101(c) of the Defense Production Act (50 U.S.C. app. § 2071
On September 30, 2009, the Defense Production Act Reauthorization of 2009 (Pub. L. 111-67, 123 Stat. 2006, September 30, 2009) (DPAR) was enacted. That act requires that within 270 days of its enactment (that is, by June 20, 2010), all agencies to which the President has delegated priorities and allocations authority under Title I of the DPA must publish final rules establishing standards and procedures by which that authority will be used to promote the national defense in both emergency and nonemergency situations. That act also required all such agencies to consult “as appropriate and to the extent practicable to develop a consistent and unified Federal priorities and allocations system.” (123 Stat. 2006, at 2009). This rule is one of several rules to be published to implement the provisions of the DPAR. The final rules of the agencies with DPAR authorities, which are the Departments of Commerce, Energy, Transportation, Health and Human Services, Defense, and Agriculture, will comprise the Federal Priorities and Allocations System.
DOE is publishing this proposed rule as the initial rulemaking stage in compliance with the provision of the DPAR noted above. DOE believes that its existing rules at 10 CFR part 216 satisfy the DPAR's requirement that agencies have standards and procedures in place to implement the DPA's 101(c) authorities. However, in the interest of promoting a unified priorities and allocations system, and to implement DOE's DPA authorities other than those set forth in section 101(c), DOE is setting forth the proposed EPAS rule. DOE's proposed EPAS provisions are consistent with the Federal Priorities and Allocations System regulations being issued by other agencies. The specific proposals in this rule are more fully described below.
Proposed Subpart A would set forth the purpose of the regulation.
Proposed § 217.1 would state the purpose of the EPAS in general terms, as providing guidance and procedures for use of the Defense Production Act Section priorities and allocations authority (other than the authorities set forth in section 101(c)) with respect to all forms of energy necessary or appropriate to promote the national defense.
Proposed § 217.2 would provide an overview of the EPAS program. This section would describe briefly all aspects of the EPAS, including the resource jurisdiction of other agencies delegated priorities and allocations authority under the DPA.
The “Definitions” section would appear in proposed § 217.20 in Subpart B and provide definitions for the relevant regulatory terms.
Proposed Subpart C would be titled “Placement of Rated Orders,” reflecting the fact that the subpart will address only DOE's priorities authorities; allocations authorities will be addressed in Subpart E.
Proposed § 217.30, “Delegation of Authority,” would describe fully the President's delegations to the Department of Energy. It would also describe, in general terms, the items subject to DOE's jurisdiction and note that the Department of Commerce has delegated certain authorities to DOE. DOE is proposing this provision to facilitate public understanding of the role that each delegate agency plays in the overall priorities and allocations system.
Proposed § 217.31, “Priority ratings,” describes the different levels of priority and program symbols used when rating an order.
Proposed § 217.32, “Elements of a rated order,” describes in detail what each rated order must include, consisting of the appropriate priority rating, delivery date information, signatures and required language. DOE seeks comment specifically on the text of this provision.
Language in proposed § 217.33, “Acceptance and rejection of rated orders,” details when orders placed by DOE may or must be accepted or rejected, and what the procedures are for both, including customer notification requirements and certain exceptions for emergency preparedness conditions. Specifically, persons must accept or reject rated orders for emergency response-related approved programs within five days (or two days, depending on the circumstance). DOE is proposing the shorter time limit in which the recipient must respond to a rated order issued in connection with an emergency response related program because such programs would involve disaster assistance, emergency response or similar activities. DOE believes that the exigent circumstances inherent in such activities justify requiring a shorter response time.
Proposed § 217.34, “Preferential scheduling,” details procedures in cases where a person receives two or more conflicting rated orders. If a person is unable to resolve such a conflict, this section refers them to special priorities assistance as provided in §§ 217.40 through 217.44. Language in proposed § 217.35, “Extension of priority ratings,” requires a person to use rated orders with suppliers to obtain items or services needed to fill a rated order. This allows the priority rating to “extend” from contractor to subcontractor to supplier throughout the entire procurement chain.
Proposed § 217.36, “Changes or cancellations of priority ratings and rated orders,” provides procedures for changing or cancelling a rated order, both by DOE or other persons who placed the order.
Proposed § 217.37, “Use of rated orders,” lists what items must be rated. It also introduces the use of certain program identification symbols used when rated orders may be combined, and details the procedures for combining two or more rated orders, as well as rated and unrated orders.
Proposed § 217.38, “Limitations on placing rated orders,” prohibits the use of rated orders in a list of specific circumstances. This section also specifically excludes the use of rated orders for resources within the resource jurisdiction of agencies other than DOE with DPA priorities and allocations authority.
Proposed Subpart D “Special Priorities Assistance” describes instances in which DOE would provide assistance in resolving matters related to priority rated contracts and orders.
Proposed § 217.40 “General provisions” illustrates when and how DOE can provide special priorities assistance, and provides specific DOE points of contact and the form to be used for requesting such assistance. Special priorities assistance may generally be requested for any reason.
Proposed § 217.41, “Requests for priority rating authority,” directs persons to the Department of Commerce to request rating authority for production or construction equipment. This section also identifies circumstances in which DOE may authorize a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract, and lists factors DOE will consider in deciding whether to grant this authority.
Proposed § 217.42, “Examples of assistance,” provides a number of examples of when special priorities assistance may be provided, although it
Proposed § 217.43 lists the criteria for granting assistance, and proposed § 217.44 lists instances in which assistance may not be provided (i.e., to secure a price advantage).
Proposed Subpart E, “Allocation Actions,” would provide the public with detailed information on the procedures governing allocations actions. Allocations actions would most likely be used in extreme circumstances, such as in response to a national emergency.
Proposed §§ 217.50 through 217.52 describe allocations and when and how allocation orders would be used. Specifically, allocation orders would be used only if priorities authority would not provide a sufficient supply of material, services or facilities for national defense requirements, or when use of priorities authority would cause a severe and prolonged disruption in the supply of resources available to support normal U.S. economic activities. Allocation orders would not be used to ration materials or services at the retail level. Allocation orders would be distributed equitably among the suppliers of the resource(s) being allocated and would not require any person to relinquish a disproportionate share of the civilian market. DOE is proposing the standards set forth in proposed §§ 217.50 through 217.52 to provide reasonable assurance that allocation orders will be used only in situations where the circumstances justify such orders.
Proposed § 217.53 describes the three types of allocation orders that DOE might issue, which are a set-aside, an allocation directive, and an allotment. A set-aside is an official action that would require a person to reserve resource capacity in anticipation of receipt of rated orders. An allocation directive is an official action that would require a person to take or refrain from taking certain actions in accordance with its provisions (an allocation directive can require a person to stop or reduce production of an item, prohibit the use of selected items, divert supply of one type of product to another, or to supply a specific quantity, size, shape, and type of an item within a specific time period). An allotment is an official action that would specify the maximum quantity of an item authorized for use in a specific program or application. DOE is proposing these three types of allocation orders because it believes that, collectively they describe the types of actions that might be taken in any situation in which allocation is justified.
Proposed § 217.54, “Elements of an allocation order,” sets forth the minimum elements of an allocation order. Those elements are:
(a) A detailed description of the required allocation action(s);
(b) Specific start and end calendar dates for each required allocation action;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the Secretary of Energy. The signature or use of the name certifies that the order is authorized under this regulation and that the requirements of this regulation are being followed;
(d) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the legal name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Energy Priorities and Allocations System regulation (10 CFR 217), which is part of the Federal Priorities and Allocations System”; and
(e) A current copy of the Energy Priorities and Allocations System (10 CFR part 217).
DOE is proposing these elements because it believes that they provide a proper balance between the need for standards to permit the public to recognize and understand an allocation order if one is issued, and the expectation that any actual allocation orders will have to be tailored to meet unforeseeable circumstances. The language of proposed § 217.54 would not preclude DOE from including additional information in an allocation order if circumstances warrant doing so.
Proposed § 217.55, “Mandatory acceptance of allocation orders,” would require that an allocation order must be accepted if a person is capable of fulfilling the order. If a person is unable to comply fully with the required actions specific in an allocation order, the person must notify DOE immediately, explain the extent to which compliance is possible, and give reasons why full compliance is not possible. This section also states that a person may not discriminate against an allocation order in any manner, such as by charging higher prices or imposing terms and conditions different than what the person imposed on contracts or orders for the same resource(s) that were received prior to receiving the allocation order. DOE is proposing § 217.55 to make it clear to the public that the limited circumstances and emergency situations that trigger issuance of an allocation order require immediate response from the public in order to address the situation in an expedient fashion.
Proposed § 217.56, “Changes or cancellations of an allocation order” provides that an allocation order may be changed or cancelled by the Department of Energy.
Proposed Subpart F, “Official Actions,” provides the specific official actions the DOE may take to implement the provisions of this regulation. These official actions include Rating Authorizations, Directives, and Memoranda of Understanding.
Proposed § 217.61, “Rating Authorizations,” defines a rating authorization as an official action granting specific priority rating authority, and refers persons to § 217.21 to request such priority rating authority.
Proposed § 217.62, “Directives,” defines a directive as an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. This section details directive compliance for the public.
Proposed § 217.63, “Letters and Memoranda of Understanding,” defines a letter or memorandum of understanding as an official action that may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties, and explains its use.
Proposed Subpart G, “Compliance,” provides DOE authority to enforce the administration of the DPA and other applicable statutes, this regulation, or an official action. This subpart provides that willful violations of the provisions of title I or section 705 of the DPA, this regulation, or a DOE official action, are criminal acts, punishable as provided in the DPA, and as set forth below in § 217.74.
Proposed § 217.71, “Audits and investigations,” details the procedures for official examinations of books, records, documents, and other writings and information to ensure that the provisions of the DPA and other applicable statutes, this regulation, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this regulation.
Proposed § 217.72, “Compulsory process,” provides that if a person refuses to permit a duly authorized DOE representative to have access to necessary information, DOE may seek the institution of appropriate legal action, including ex parte application
Proposed §§ 217.73 and 217.74 both provide procedures for notification of failure to comply with the DPA, these regulations, or DOE official actions, and the violations, penalties and remedies that may result.
Proposed § 217.75, “Compliance Conflicts,” requires that persons immediately contact DOE should compliance with the DPA, these regulations, or an official action prevent a person from filling a rated order or from complying with another provision of the DPA and other applicable statutes, this regulation, or an official action.
Proposed § 217.80, “Adjustments, Exceptions, and Appeals,” would reflect the procedures necessary to request an adjustment or exception to the provisions of these regulations on the grounds of exceptional hardship or compliance would be contrary to the intent of the DPA. These requests must be written and submitted to the DOE contact provided in this section.
Proposed § 217.81, “Appeals,” provides the procedures, timing and contact information for appealing a decision made on a request for relief in the previous section.
Proposed Subpart I, “Miscellaneous Provisions,” addresses a number of remaining issues, including protection against claims, records and reports, applicability issues, and communications.
Proposed § 217.90, “Protection against claims,” provides that a person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any part of this regulation, or an official action.
Proposed § 217.91, “Records and reports,” would require that persons are required to make and preserve for at least three years, accurate and complete records of any transaction covered by this regulation or an official action. Various requirements and procedures regarding such records are provided in this section. The confidentiality provisions of the DPA governing the submission of information pursuant to the DPA and these regulations are also set forth.
Proposed § 217.92, “Applicability of this regulation and official actions,” would provide the jurisdictional applicability of this regulation and official actions.
Proposed § 217.93, “Communications,” would provide a DOE point of contact for all communications regarding this regulation.
This rule has been determined to be significant for purposes of Executive Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE reviewed today's final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003.
Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of this proposed rule on small entities, a small business, as described in the Small Business Administration's Table of Small Business Size Standards Matched to North American Industry Classification System Codes (August 2008 Edition), has a maximum annual revenue of $33.5 million and a maximum of 1,500 employees (for some business categories, these number are lower). A small governmental jurisdiction is a government of a city, town, school district or special district with a population of less than 50,000. A small organization is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
This rule sets criteria under which DOE (or agencies to which DOE delegates authority) will authorize prioritization of certain orders or contracts as well as criteria under which DOE would issue orders allocating resources or production facilities. Because the rule affects commercial transactions, DOE believes that small organizations and small governmental jurisdictions are unlikely to be affected by this rule. To date, DOE has not exercised its existing allocations authority. As such, DOE has no basis on which to estimate the number of small businesses that may be affected by this rule.
The proposed rule has two principle components: prioritization and allocation. Under prioritization, DOE or its Delegate Agency designates certain orders as one of two possible priority levels. Once so designated, such orders are referred to as “rated orders.” The recipient of a rated order must give it priority over an unrated order or an order with a lower priority rating. A recipient of a rated order may place orders at the same priority level with suppliers and subcontractors for supplies and services necessary to fulfill the recipient's rated order and the suppliers and subcontractors must treat the request from the rated order recipient as a rated order with the same priority level as the original rated order. The rule does not require recipients to fulfill rated orders if the price or terms of sale are not consistent with the price or terms of sale of similar non-rated orders. The rule provides a defense from any liability for damages or penalties for actions taken in, or inactions required for, compliance with the rule.
Although rated orders could require a firm to fill one order prior to filling another, they would not necessarily require a reduction in the total volume of orders. The regulations would also not require the recipient of a rated order to reduce prices or provide rated orders with more favorable terms than a similar non-rated order. Under these circumstances, the economic effects on the rated order recipient of substituting one order for another are likely to be mutually offsetting, resulting in no net economic impact.
Allocations could be used to control the general distribution of materials or services in the civilian market. Specific allocation actions that DOE might take are as follows:
Set-aside: an official action that requires a person to reserve resource capacity in anticipation of receipt of rated orders.
Allocations directive: an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. An allocation directive can require a person to stop or reduce production
Allotment: an official action that specifies the maximum quantity of an item authorized for use in a specific program or application.
Any allocation actions taken by DOE would also have to comply with Section 701(e) of the DPA (50 U.S.C. app. § 2151(e)), which provides that “small business concerns shall be accorded, to the extent practicable, a fair share of the such material [including services] in proportion to the share received by such business concerns under normal conditions, giving such special consideration as may be possible to emerging business concerns.” Such a provision may even provide an economic benefit to small businesses.
Although DOE cannot determine precisely the number of small entities that would be affected by this rule, DOE believes that the overall impact on such entities would not be significant. In most instances, rated contracts would be fulfilled in addition to other (unrated) contracts and could actually increase the total amount of business of the firm that receives a rated contract.
Because allocations can be imposed only after an agency determination confirmed by the President, and because DOE has not yet used its allocations authority that has existed since passage of the Defense Production Act in 1950, one can expect allocations will be ordered only in particular circumstances. However, DOE believes that the requirement for a Presidential determination and the provisions of section 701 of the DPA indicate that any impact on small business will not be significant.
Therefore, for the reasons set forth above, the Assistant General Counsel for Legislation, Regulation, and Energy Efficiency certifies that this proposed rule, if implemented, would not have a significant economic impact on a substantial number of small entities.
This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. Public reporting burden for submission of Form DOE-XXX is estimated to average 30 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to Dr. Kenneth Friedman (
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA) a Statement of Energy Effects for any proposed significant energy action. DOE determined that today's proposed rule, which sets forth procedures for compliance with the Defense Production Act (separate from the procedures set forth at 10 CFR part 216), is not a “significant energy action” within the meaning of Executive Order 13211. The Administrator of the Office of Information and Regulatory Affairs at OMB also did not designate this action as a significant energy action. Therefore, DOE has tentatively concluded that today's proposed rule is not a significant energy action within the meaning of Executive Order 13211 and has not prepared a Statement of Energy Effects.
DOE reviewed this rule pursuant to Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), which imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. DOE also reviewed this rule pursuant to DOE's statement of policy describing the intergovernmental consultation process it will follow in the development of regulations that have federalism implications, 65 FR 13735 (March 14, 2000). DOE determined that the rule would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government.
The Secretary of Energy has approved publication of this notice of proposed rulemaking.
Administrative practice and procedure, Business and industry, Government contracts, National defense, Reporting and recordkeeping requirements, Strategic and critical materials.
For the reasons stated in the preamble, DOE proposes to add a new part 217 to chapter II of title 10 of the Code of Federal Regulations, to read as set forth below:
Defense Production Act of 1950, as amended, 50 U.S.C. App. 2061-2171; E. O. 12919, as amended, (59 FR 29525, June 7, 1994)
This part provides guidance and procedures for use of the Defense Production Act section 101(a) priorities and allocations authority with respect to all forms of energy necessary or appropriate to promote the national defense. (The guidance and procedures in this part are consistent with the guidance and procedures provided in other regulations that, as a whole, form the Federal Priorities and Allocations System. Guidance and procedures for use of the Defense Production Act priorities and allocations authority with respect to other types of resources are provided for: food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer in [
(a) Section 201 of E. O. 12919 [59 FR 29525] delegates the President's authority under section 101 of the Defense Production Act to require acceptance and priority performance of contracts and orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense to:
(1) The Secretary of Agriculture with respect to food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer;
(2) The Secretary of Energy with respect to all forms of energy;
(3) The Secretary of Health and Human Services with respect to health resources;
(4) The Secretary of Transportation with respect to all forms of civil transportation;
(5) The Secretary of Defense with respect to water resources; and
(6) The Secretary of Commerce for all other materials, services, and facilities, including construction materials.
(b) Section 202 of E.O. 12919 states that the priorities and allocations authority delegated in section 201 of this order may be used only to support programs that have been determined in writing as necessary or appropriate to promote the national defense:
(1) By the Secretary of Defense with respect to military production and construction, military assistance to foreign nations, stockpiling, outer space, and directly related activities;
(2) By the Secretary of Energy with respect to energy production and construction, distribution and use, and directly related activities; and
(3) By the Secretary of Homeland Security with respect to essential civilian needs supporting national defense, including civil defense and continuity of government and directly related activities.
Certain programs to promote the national defense are eligible for priorities and allocations support. These include programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, deploying and sustaining military forces, homeland security, stockpiling, space, and any directly related activity. Other eligible programs include emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act [42 U.S.C. 5195
The following definitions pertain to all sections of this part:
(1) Measures to be undertaken in preparation for anticipated hazards (including the establishment of appropriate organizations, operational plans, and supporting agreements, the recruitment and training of personnel, the conduct of research, the procurement and stockpiling of necessary materials and supplies, the provision of suitable warning systems, the construction or preparation of shelters, shelter areas, and control centers, and, when appropriate, the nonmilitary evacuation of the civilian population).
(2) Measures to be undertaken during a hazard (including the enforcement of passive defense regulations prescribed by duly established military or civil authorities, the evacuation of personnel to shelter areas, the control of traffic and panic, and the control and use of lighting and civil communications).
(3) Measures to be undertaken following a hazard (including activities for fire fighting, rescue, emergency medical, health and sanitation services, monitoring for specific dangers of special weapons, unexploded bomb reconnaissance, essential debris clearance, emergency welfare measures, and immediately essential emergency repair or restoration of damaged vital facilities).
(1) A natural disaster; or
(2) An accidental or human-caused event.
(1) To prevent terrorist attacks within the United States;
(2) To reduce the vulnerability of the United States to terrorism;
(3) To minimize damage from a terrorist attack in the United States; and
(4) To recover from a terrorist attack in the United States.
(1) “Maintenance” is the upkeep necessary to continue any plant, facility, or equipment in working condition.
(2) “Repair” is the restoration of any plant, facility, or equipment to working condition when it has been rendered unsafe or unfit for service by wear and tear, damage, or failure of parts.
(3) “Operating supplies” are any resources carried as operating supplies according to a person's established accounting practice. Operating supplies may include hand tools and expendable tools, jigs, dies, fixtures used on production equipment, lubricants, cleaners, chemicals and other expendable items.
(4) MRO does not include items produced or obtained for sale to other persons or for installation upon or attachment to the property of another person, or items required for the production of such items; items needed for the replacement of any plant, facility, or equipment; or items for the improvement of any plant, facility, or equipment by replacing items which are still in working condition with items of a new or different kind, quality, or design.
(1) Any raw materials (including minerals, metals, and advanced processed materials), commodities, articles, components (including critical components), products, and items of supply; and
(2) Any technical information or services ancillary to the use of any such materials, commodities, articles, components, products, or items.
(3) Natural resources such as oil and gas.
(1) The development, production, processing, distribution, delivery, or use of an industrial resource or a critical technology item;
(2) The construction of facilities;
(3) The movement of individuals and property by all modes of civil transportation; or
(4) Other national defense programs and activities.
(a) The priorities and allocations authorities of the President under Title I of the Defense Production Act with respect to all forms of energy have been delegated to the Secretary of Energy under E.O. 12919 of June 3, 1994 (59 FR 29525).
(b) The Department of Commerce has delegated authority to the Department of Energy to provide for extension of priority ratings for “industrial resources,” as provided in § 261.35 of this part, to support rated orders for all forms of energy.
(a)
(1) There are two levels of priority established by Federal Priorities and Allocations System regulations, identified by the rating symbols “DO” and “DX”.
(2) All DO-rated orders have equal priority with each other and take precedence over unrated orders. All DX-rated orders have equal priority with each other and take precedence over DO-rated orders and unrated orders. (For resolution of conflicts among rated orders of equal priority, see § 217.34(c).)
(3) In addition, a Directive regarding priority treatment for a given item issued by the Department of Energy for that item takes precedence over any DX-rated order, DO-rated order, or unrated order, as stipulated in the Directive. (For a full discussion of Directives, see § 217.62.)
(b)
(c)
Each rated order must include:
(a) The appropriate priority rating (e.g. DO-E or DX-E)
(b) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. A “requirements contract”, “basic ordering agreement”, “prime vendor contract”, or similar procurement document bearing a priority rating may contain no specific delivery date or dates and may provide for the furnishing of items or service from time-to-time or within a stated period against specific purchase orders, such as “calls”, “requisitions”, and “delivery orders”. These purchase orders must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an individual authorized to sign rated orders for the
(d) (1) A statement that reads in substance:
This is a rated order certified for national defense use, and you are required to follow all the provisions of the Energy Priorities and Allocations System regulation at 10 CFR part 217.
(2) If the rated order is placed in support of emergency preparedness requirements and expedited action is necessary and appropriate to meet these requirements, the following sentences should be added following the statement set forth in paragraph (d)(1) of this section:
This rated order is placed for the purpose of emergency preparedness. It must be accepted or rejected within 2 days after receipt of the order if (1) The order is issued in response to a hazard that has occurred; or (2) If the order is issued to prepare for an imminent hazard, as specified in EPAS Section 217.33(e), 10 CFR 217.33(e).
(a)
(2) A person shall not discriminate against rated orders in any manner such as by charging higher prices or by imposing different terms and conditions than for comparable unrated orders.
(b)
(1) A person shall not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made and offer to accept the order on the basis of that date. Scheduling conflicts with previously accepted lower rated or unrated orders are not sufficient reason for rejection under this section.
(2) A person shall not accept a DO-rated order for delivery on a date which would interfere with delivery of any previously accepted DO- or DX-rated orders. However, the person must offer to accept the order based on the earliest delivery date otherwise possible.
(3) A person shall not accept a DX-rated order for delivery on a date which would interfere with delivery of any previously accepted DX-rated orders, but must offer to accept the order based on the earliest delivery date otherwise possible.
(4) If a person is unable to fill all of the rated orders of equal priority status received on the same day, the person must accept, based upon the earliest delivery dates, only those orders which can be filled, and reject the other orders. For example, a person must accept order A requiring delivery on December 15 before accepting order B requiring delivery on December 31. However, the person must offer to accept the rejected orders based on the earliest delivery dates otherwise possible.
(c)
(1) If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;
(2) If the order is for an item not supplied or for a service not capable of being performed;
(3) If the order is for an item or service produced, acquired, or provided only for the supplier's own use for which no orders have been filled for two years prior to the date of receipt of the rated order. If, however, a supplier has sold some of these items or provided similar services, the supplier is obligated to accept rated orders up to that quantity or portion of production or service, whichever is greater, sold or provided within the past two years;
(4) If the person placing the rated order, other than the U.S. Government, makes the item or performs the service being ordered;
(5) If acceptance of a rated order or performance against a rated order would violate any other regulation, official action, or order of the Department of Energy, issued under the authority of the Defense Production Act or another relevant statute.
(d)
(2) If a person has accepted a rated order and subsequently finds that shipment or performance will be delayed, the person must notify the customer immediately, give the reasons for the delay, and advise of a new shipment or performance date. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days.
(e)
(1) The order is issued in response to a hazard that has occurred; or
(2) The order is issued to prepare for an imminent hazard.
(a) A person must schedule operations, including the acquisition of all needed production items or services, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met.
(b) DO-rated orders must be given production preference over unrated orders, if necessary to meet required delivery dates, even if this requires the diversion of items being processed or ready for delivery or services being performed against unrated orders. Similarly, DX-rated orders must be given preference over DO-rated orders and unrated orders. (Examples: If a person receives a DO-rated order with a delivery date of June 3 and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed. If a DX-rated order is received calling for delivery on July 15 and a person has a DO-rated order requiring delivery on June 2 and operations can be scheduled to meet both deliveries, there is no need to alter production schedules to give any additional preference to the DX-rated order.)
(c)
(1) If a person finds that delivery or performance against any accepted rated orders conflicts with the delivery or performance against other accepted rated orders of equal priority status, the person shall give precedence to the conflicting orders in the sequence in which they are to be delivered or performed (not to the receipt dates). If the conflicting orders are scheduled to be delivered or performed on the same day, the person shall give precedence to those orders that have the earliest receipt dates.
(2) If a person is unable to resolve rated order delivery or performance conflicts under this section, the person should promptly seek special priorities
(d) If a person is unable to purchase needed production items in time to fill a rated order by its required delivery date, the person must fill the rated order by using inventoried production items. A person who uses inventoried items to fill a rated order may replace those items with the use of a rated order as provided in § 217.37(b).
(a) A person must use rated orders with suppliers to obtain items or services needed to fill a rated order. The person must use the priority rating indicated on the customer's rated order, except as otherwise provided in this part or as directed by the Department of Energy. For example, if a person is in receipt of a DO-E-F1 rated order for an electric power sub-station, and needs to purchase a transformer for its manufacture, that person must use a DO-E-F1 rated order to obtain the needed transformer.
(b) The priority rating must be included on each successive order placed to obtain items or services needed to fill a customer's rated order. This continues from contractor to subcontractor to supplier throughout the entire procurement chain.
(a) The priority rating on a rated order may be changed or canceled by:
(1) An official action of the Department of Energy; or
(2) Written notification from the person who placed the rated order.
(b) If an unrated order is amended so as to make it a rated order, or a DO rating is changed to a DX rating, the supplier must give the appropriate preferential treatment to the order as of the date the change is received by the supplier.
(c) An amendment to a rated order that significantly alters a supplier's original production or delivery schedule shall constitute a new rated order as of the date of its receipt. The supplier must accept or reject the amended order according to the provisions of § 217.33.
(d) The following amendments do not constitute a new rated order: a change in shipping destination; a reduction in the total amount of the order; an increase in the total amount of the order which has negligible impact upon deliveries; a minor variation in size or design; or a change which is agreed upon between the supplier and the customer.
(e) If a person no longer needs items or services to fill a rated order, any rated orders placed with suppliers for the items or services, or the priority rating on those orders, must be canceled.
(f) When a priority rating is added to an unrated order, or is changed or canceled, all suppliers must be promptly notified in writing.
(a) A person must use rated orders to obtain:
(1) Items which will be physically incorporated into other items to fill rated orders, including that portion of such items normally consumed or converted into scrap or by-products in the course of processing;
(2) Containers or other packaging materials required to make delivery of the finished items against rated orders;
(3) Services, other than contracts of employment, needed to fill rated orders; and
(4) MRO needed to produce the finished items to fill rated orders.
(b) A person may use a rated order to replace inventoried items (including finished items) if such items were used to fill rated orders, as follows:
(1) The order must be placed within 90 days of the date of use of the inventory.
(2) A DO rating and the program identification symbol indicated on the customer's rated order must be used on the order. A DX rating may not be used even if the inventory was used to fill a DX-rated order.
(3) If the priority ratings on rated orders from one customer or several customers contain different program identification symbols, the rated orders may be combined. In this case, the program identification symbol “H1” must be used (i.e., DO-H1).0
(c) A person may combine DX- and DO-rated orders from one customer or several customers if the items or services covered by each level of priority are identified separately and clearly. If different program identification symbols are indicated on those rated orders of equal priority, the person must use the program identification symbol “H1” (
(d)
(1) A person may combine rated and unrated order quantities on one purchase order provided that:
(i) The rated quantities are separately and clearly identified; and
(ii) The four elements of a rated order, as required by § 217.32, are included on the order with the statement required in § 217.32(d) modified to read in substance:
This purchase order contains rated order quantities certified for national defense use, and you are required to follow all applicable provisions of the Energy Priorities and Allocations System regulations at 10 CFR part 217 only as it pertains to the rated quantities.
(2) A supplier must accept or reject the rated portion of the purchase order as provided in § 217.33 and give preferential treatment only to the rated quantities as required by this part. This part may not be used to require preferential treatment for the unrated portion of the order.
(3) Any supplier who believes that rated and unrated orders are being combined in a manner contrary to the intent of this part or in a fashion that causes undue or exceptional hardship may submit a request for adjustment or exception under § 217.80.
(e) A person may place a rated order for the minimum commercially procurable quantity even if the quantity needed to fill a rated order is less than that minimum. However, a person must combine rated orders as provided in paragraph (c) of this section, if possible, to obtain minimum procurable quantities.
(f) A person is not required to place a priority rating on an order for less than $50,000, or one-half of the Simplified Acquisition Threshold (as established in the Federal Acquisition Regulation (FAR) (see FAR section 2.101) or in other authorized acquisition regulatory or management systems) whichever amount is greater, provided that delivery can be obtained in a timely fashion without the use of the priority rating.
(a)
(1) A person may not place a DO- or DX-rated order unless entitled to do so under this part.
(2) Rated orders may not be used to obtain:
(i) Delivery on a date earlier than needed;
(ii) A greater quantity of the item or services than needed, except to obtain a minimum procurable quantity. Separate rated orders may not be placed solely for the purpose of obtaining minimum procurable quantities on each order;
(iii) Items or services in advance of the receipt of a rated order, except as
(iv) Items that are not needed to fill a rated order, except as specifically authorized by the Department of Energy, or as otherwise permitted by this part; or
(v) Any of the following items unless specific priority rating authority has been obtained from the Department of Energy, a Delegate Agency, or the Department of Commerce, as appropriate:
(A) Items for plant improvement, expansion, or construction, unless they will be physically incorporated into a construction project covered by a rated order; and
(B) Production or construction equipment or items to be used for the manufacture of production equipment. [For information on requesting priority rating authority, see § 217.21.]
(vi) Any items related to the development of chemical or biological warfare capabilities or the production of chemical or biological weapons, unless such development or production has been authorized by the President or the Secretary of Defense.
(b)
(1) Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer (Resource agency with jurisdiction—Department of Agriculture);
(2) Health resources (Resource agency with jurisdiction—Department of Health and Human Services);
(3) All forms of civil transportation (Resource agency with jurisdiction—Department of Transportation);
(4) Water resources (Resource agency with jurisdiction—Department of Defense/U.S. Army Corps of Engineers); and
(5) Communications services (Resource agency with jurisdiction—National Communications System under E. O. 12472 of April 3, 1984).
(a) The six regulations that comprise the Federal Priorities and Allocations System are designed to be largely self-executing. However, from time-to-time production or delivery problems will arise. In this event, a person should immediately contact the Office of Infrastructure Security and Energy Restoration, for guidance or assistance (Contact the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93). If the problem(s) cannot otherwise be resolved, special priorities assistance should be sought from the Department of Energy through the Office of Infrastructure Security and Energy Restoration (Contact the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93). If the Department of Energy is unable to resolve the problem or to authorize the use of a priority rating and believes additional assistance is warranted, the Department of Energy may forward the request to another agency with resource jurisdiction, as appropriate, for action. Special priorities assistance is provided to alleviate problems that do arise.
(b) Special priorities assistance is available for any reason consistent with this part. Generally, special priorities assistance is provided to expedite deliveries, resolve delivery conflicts, place rated orders, locate suppliers, or to verify information supplied by customers and vendors. Special priorities assistance may also be used to request rating authority for items that are not normally eligible for priority treatment.
(c) A request for special priorities assistance or priority rating authority must be submitted on Form DOE-XXX [OMB control number to be inserted in the final rule] to the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93. Form DOE-999 may be obtained from the Department of Energy or a Delegate Agency. A sample Form DOE-999 is attached at Appendix I to this part.
(a) If a rated order is likely to be delayed because a person is unable to obtain items or services not normally rated under this part, the person may request the authority to use a priority rating in ordering the needed items or services.
(b)
(1) A request for priority rating authority for production or construction equipment must be submitted to the U.S. Department of Commerce on Form BIS-999.
(2) When the use of a priority rating is authorized for the procurement of production or construction equipment, a rated order may be used either to purchase or to lease such equipment. However, in the latter case, the equipment may be leased only from a person engaged in the business of leasing such equipment or from a person willing to lease rather than sell.
(c)
(2) The person must state the following in the request:
It is understood that the authorization of a priority rating in advance of our receiving a rated prime contract from the Department of Energy and our use of that priority rating with our suppliers in no way commits the Department of Energy or any other government agency to enter into a contract or order or to expend funds. Further, we understand that the Federal Government shall not be liable for any cancellation charges, termination costs, or other damages that may accrue if a rated prime contract is not eventually placed and, as a result, we must subsequently cancel orders placed with the use of the priority rating authorized as a result of this request.
(3) In reviewing requests for rating authority in advance of a rated prime contract, the Department of Energy will consider, among other things, the following criteria:
(i) The probability that the prime contract will be awarded;
(ii) The impact of the resulting rated orders on suppliers and on other authorized programs;
(iii) Whether the contractor is the sole source;
(iv) Whether the item being produced has a long lead time;
(v) The time period for which the rating is being requested.
(4) The Department of Energy may require periodic reports on the use of the rating authority granted under paragraph (c) of this section.
(5) If a rated prime contract is not issued, the person shall promptly notify all suppliers who have received rated orders pursuant to the advanced rating authority that the priority rating on those orders is cancelled.
(a) While special priorities assistance may be provided for any reason in support of this part, it is usually provided in situations where:
(1) A person is experiencing difficulty in obtaining delivery against a rated order by the required delivery date; or
(2) A person cannot locate a supplier for an item or service needed to fill a rated order.
(b) Other examples of special priorities assistance include:
(1) Ensuring that rated orders receive preferential treatment by suppliers;
(2) Resolving production or delivery conflicts between various rated orders;
(3) Assisting in placing rated orders with suppliers;
(4) Verifying the urgency of rated orders; and
(5) Determining the validity of rated orders.
Requests for special priorities assistance should be timely,
(a) There is an urgent need for the item; and
(b) The applicant has made a reasonable effort to resolve the problem.
Special priorities assistance is provided at the discretion of the Department of Energy, the Delegate Agencies, or the Department of Commerce when it is determined that such assistance is warranted to meet the objectives of this part. Examples where assistance may not be provided include situations when a person is attempting to:
(a) Secure a price advantage;
(b) Obtain delivery prior to the time required to fill a rated order;
(c) Gain competitive advantage;
(d) Disrupt an industry apportionment program in a manner designed to provide a person with an unwarranted share of scarce items; or
(e) Overcome a supplier's regularly established terms of sale or conditions of doing business.
(a) It is the policy of the Federal Government that the allocations authority under title I of the Defense Production Act may:
(1) Only be used when there is insufficient supply of a material, service, or facility to satisfy national defense supply requirements through the use of the priorities authority or when the use of the priorities authority would cause a severe and prolonged disruption in the supply of materials, services, or facilities available to support normal U.S. economic activities; and
(2) Not be used to ration materials or services at the retail level.
(b) Allocation orders, when used, will be distributed equitably among the suppliers of the materials, services, or facilities being allocated and not require any person to relinquish a disproportionate share of the civilian market.
When the Department of Energy plans to execute its allocations authority to address a supply problem within its resource jurisdiction, the Department shall develop a plan that includes the following information:
(a) A copy of the written determination made, in accordance with section 202 of E. O. 12919, that the program or programs that would be supported by the allocation action are necessary or appropriate to promote the national defense;
(b) A detailed description of the situation to include any unusual events or circumstances that have created the requirement for an allocation action;
(c) A statement of the specific objective(s) of the allocation action;
(d) A list of the materials, services, or facilities to be allocated;
(e) A list of the sources of the materials, services, or facilities that will be subject to the allocation action;
(f) A detailed description of the provisions that will be included in the allocation orders, including the type(s) of allocation orders, the percentages or quantity of capacity or output to be allocated for each purpose, and the duration of the allocation action (
(g) An evaluation of the impact of the proposed allocation action on the civilian market; and
(h) Proposed actions, if any, to mitigate disruptions to civilian market operations.
No allocation action by the Department of Energy may be used to control the general distribution of a material in the civilian market, unless the Secretary of the Department of Energy has:
(a) Made a written finding that:
(1) Such material is a scarce and critical material essential to the national defense, and
(2) The requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship;
(b) Submitted the finding for the President's approval through the Assistant to the President for National Security Affairs; and
(c) The President has approved the finding.
There are three types of allocation orders available for communicating allocation actions. These are:
(a)
(b)
(c)
Each allocation order must include:
(a) A detailed description of the required allocation action(s);
(b) Specific start and end calendar dates for each required allocation action;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the Secretary of Energy. The signature or use of the name certifies that the order is authorized under this part and that the requirements of this part are being followed;
(d) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the legal name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Energy Priorities and Allocations System regulation (10 CFR Part 217), which is part of the Federal Priorities and Allocations System”; and
(e) A current copy of the Energy Priorities and Allocations System regulation (10 CFR part 217).
(a) Except as otherwise specified in this section, a person shall accept and comply with every allocation order received.
(b) A person shall not discriminate against an allocation order in any manner such as by charging higher prices for materials, services, or facilities covered by the order or by imposing terms and conditions for contracts and orders involving allocated materials, services, or facilities that differ from the person's terms and conditions for contracts and orders for the materials, services, or facilities prior to receiving the allocation order.
(c) If a person is unable to comply fully with the required action(s) specified in an allocation order, the person must notify the Department of Energy immediately, explain the extent to which compliance is possible, and give the reasons why full compliance is not possible. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days. Such notification does not release the person from complying with the order to the fullest extent possible, until the person is notified by the Department of Energy that the order has been changed or cancelled.
An allocation order may be changed or canceled by an official action of the Department of Energy.
(a) The Department of Energy may take specific official actions to implement the provisions of this part.
(b) These official actions include Rating Authorizations, Directives, and Memoranda of Understanding.
(a) A Rating Authorization is an official action granting specific priority rating authority that:
(1) Permits a person to place a priority rating on an order for an item or service not normally ratable under this part; or
(2) Authorizes a person to modify a priority rating on a specific order or series of contracts or orders.
(b) To request priority rating authority, see § 217.41.
(a) A Directive is an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions.
(b) A person must comply with each Directive issued. However, a person may not use or extend a Directive to obtain any items from a supplier, unless expressly authorized to do so in the Directive.
(c) A Priorities Directive takes precedence over all DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.
(d) An Allocations Directive takes precedence over all Priorities Directives, DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.
(a) A Letter or Memorandum of Understanding is an official action that may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties (the Department of Energy, the Department of Commerce (if applicable), a Delegate Agency (if applicable), the supplier, and the customer).
(b) A Letter or Memorandum of Understanding is not used to alter scheduling between rated orders, to authorize the use of priority ratings, to impose restrictions under this part. Rather, Letters or Memoranda of Understanding are used to confirm production or shipping schedules that do not require modifications to other rated orders.
(a) The Department of Energy may take specific official actions for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or an official action. Such actions include Administrative Subpoenas, Demands for Information, and Inspection Authorizations.
(b) Any person who places or receives a rated order or an allocation order must comply with the provisions of this part.
(c) Willful violation of the provisions of title I or section 705 of the Defense Production Act and other applicable statutes, this part, or an official action of the Department of Energy is a criminal act, punishable as provided in the Defense Production Act and other applicable statutes, and as set forth in § 217.74 of this part.
(a) Audits and investigations are official examinations of books, records, documents, other writings and information to ensure that the provisions of the Defense Production Act and other applicable statutes, this part, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this part.
(b) When undertaking an audit or investigation, the Department of Energy shall:
(1) Define the scope and purpose in the official action given to the person under investigation, and
(2) Have ascertained that the information sought or other adequate and authoritative data are not available from any Federal or other responsible agency.
(c) In administering this part, the Department of Energy may issue the following documents that constitute official actions:
(1)
(2)
(3)
(d) The production of books, records, documents, other writings, and information will not be required at any place other than where they are usually kept if, prior to the return date specified in the Administrative Subpoena or Demand for Information, a duly authorized official of the Department of Energy is furnished with copies of such material that are certified under oath to be true copies. As an alternative, a person may enter into a stipulation with a duly authorized official of Department of Energy as to the content of the material.
(e) An Administrative Subpoena, Demand for Information, or Inspection Authorization, shall include the name, title, or official position of the person to be served, the evidence sought to be adduced, and its general relevance to the scope and purpose of the audit, investigation, or other inquiry. If employees or agents are to be interviewed; if books, records, documents, other writings, or information are to be produced; or if property is to be inspected; the Administrative Subpoena, Demand for Information, or Inspection Authorization will describe them with particularity.
(f) Service of documents shall be made in the following manner:
(1) Service of a Demand for Information or Inspection Authorization shall be made personally, or by Certified Mail-Return Receipt Requested at the person's last known address. Service of an Administrative Subpoena shall be made personally. Personal service may also be made by leaving a copy of the document with someone at least 18 years old at the person's last known dwelling or place of business.
(2) Service upon other than an individual may be made by serving a partner, corporate officer, or a managing or general agent authorized by appointment or by law to accept service of process. If an agent is served, a copy of the document shall be mailed to the person named in the document.
(3) Any individual 18 years of age or over may serve an Administrative Subpoena, Demand for Information, or Inspection Authorization. When personal service is made, the individual making the service shall prepare an affidavit as to the manner in which service was made and the identity of the person served, and return the affidavit, and in the case of subpoenas, the original document, to the issuing officer. In case of failure to make service, the reasons for the failure shall be stated on the original document.
(a) If a person refuses to permit a duly authorized representative of the Department of Energy to have access to any premises or source of information necessary to the administration or the enforcement of the Defense Production Act and other applicable statutes, this part, or official actions, the Department of Energy representative may seek compulsory process. Compulsory process means the institution of appropriate legal action, including ex parte application for an inspection warrant or its equivalent, in any forum of appropriate jurisdiction.
(b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary.
(a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, the Department of Energy may inform the person in writing where compliance with the requirements of the Defense Production Act and other applicable statutes, this part, or an official action were not met.
(b) In cases where the Department of Energy determines that failure to comply with the provisions of the Defense Production Act and other applicable statutes, this part, or an official action was inadvertent, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willful violation of the Defense Production Act and other applicable statutes, this part, or an official action.
(a) Willful violation of the provisions of title I or sections 705 or 707 of the Defense Production Act, the priorities provisions of the Selective Service Act and related statutes (when applicable), this part, or an official action, is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalties provided by the Defense Production Act are a $10,000 fine, or one year in prison, or both. The maximum penalties provided by the Selective Service Act and related statutes are a $50,000 fine, or three years in prison, or both.
(b) The Government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act, this part, or an official action.
(c) In order to secure the effective enforcement of the Defense Production Act and other applicable statutes, this part, and official actions, the following are prohibited:
(1) No person may solicit, influence or permit another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.
(2) No person may conspire or act in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.
(3) No person shall deliver any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act and other applicable statutes, this part, or an official action. In such instances, the person must immediately notify the Department of Energy that, in accordance with this provision, delivery has not been made.
If compliance with any provision of the Defense Production Act and other applicable statutes, this part, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act and other applicable statutes, this part, or an official action, the person must immediately notify the Department of Energy for resolution of the conflict.
(a) A person may submit a request to the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in section 217.93, for an adjustment or exception on the ground that:
(1) A provision of this part or an official action results in an undue or exceptional hardship on that person not suffered generally by others in similar situations and circumstances; or
(2) The consequences of following a provision of this part or an official
(b) Each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to the provision of this part or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided.
(c) The submission of a request for adjustment or exception shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the request is being considered unless such interim relief is granted in writing by the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93.
(d) A decision of the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93, under this section may be appealed to the Office of Infrastructure Security and Energy Restoration (For information on the appeal procedure, see § 217.81.)
(a) Any person who has had a request for adjustment or exception denied by the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93, under § 217.80, may appeal to the Office of Infrastructure Security and Energy Restoration who shall review and reconsider the denial.
(b) (1) Except as provided in paragraph (b)(2) of this section, an appeal must be received by the Office of Infrastructure Security and Energy Restoration no later than 45 days after receipt of a written notice of denial from the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, as listed in § 217.93. After this 45-day period, an appeal may be accepted at the discretion of the Office of Infrastructure Security and Energy Restoration for good cause shown.
(2) For requests for adjustment or exception involving rated orders placed for the purpose of emergency preparedness (
(c) Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from and a full and precise statement of the reasons the decision should be modified or reversed.
(d) In addition to the written materials submitted in support of an appeal, an appellant may request, in writing, an opportunity for an informal hearing. This request may be granted or denied at the discretion of the Office of Infrastructure Security and Energy Restoration.
(e) When a hearing is granted, the Office of Infrastructure Security and Energy Restoration may designate an employee to conduct the hearing and to prepare a report. The hearing officer shall determine all procedural questions and impose such time or other limitations deemed reasonable. In the event that the hearing officer decides that a printed transcript is necessary, all expenses shall be borne by the appellant.
(f) When determining an appeal, the Office of Infrastructure Security and Energy Restoration may consider all information submitted during the appeal as well as any recommendations, reports, or other relevant information and documents available to the Department of Energy or consult with any other persons or groups.
(g) The submission of an appeal under this section shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the appeal is being considered unless such relief is granted in writing by the Office of Infrastructure Security and Energy Restoration.
(h) The decision of the Office of Infrastructure Security and Energy Restoration shall be made within five (5) days after receipt of the appeal, or within one (1) day for appeals pertaining to emergency preparedness and shall be the final administrative action. It shall be issued to the appellant in writing with a statement of the reasons for the decision.
A person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any provision of this part, or an official action, notwithstanding that such provision or action shall subsequently be declared invalid by judicial or other competent authority.
(a) Persons are required to make and preserve for at least three years, accurate and complete records of any transaction covered by this part or an official action.
(b) Records must be maintained in sufficient detail to permit the determination, upon examination, of whether each transaction complies with the provisions of this part or any official action. However, this part does not specify any particular method or system to be used.
(c) Records required to be maintained by this part must be made available for examination on demand by duly authorized representatives of the Department of Energy as provided in § 217.71.
(d) In addition, persons must develop, maintain, and submit any other records and reports to the Department of Energy that may be required for the administration of the Defense Production Act and other applicable statutes, and this part.
(e) Section 705(d) of the Defense Production Act, as implemented by E.O. 12919, provides that information obtained under this section which the Secretary deems confidential, or with reference to which a request for confidential treatment is made by the person furnishing such information, shall not be published or disclosed unless the Secretary determines that the withholding of this information is contrary to the interest of the national defense. Information required to be submitted to the Department of Energy in connection with the enforcement or administration of the Defense Production Act, this part, or an official action, is deemed to be confidential under section 705(d) of the Defense Production Act and shall be handled in accordance with applicable Federal law.
(a) This part and all official actions, unless specifically stated otherwise, apply to transactions in any state, territory, or possession of the United States and the District of Columbia.
(b) This part and all official actions apply not only to deliveries to other persons but also include deliveries to affiliates and subsidiaries of a person and deliveries from one branch, division, or section of a single entity to another branch, division, or section under common ownership or control.
(c) This part and its schedules shall not be construed to affect any administrative actions taken by the Department of Energy, or any outstanding contracts or orders placed pursuant to any of the regulations,
All communications concerning this part, including requests for copies of the part and explanatory information, requests for guidance or clarification, and requests for adjustment or exception shall be addressed to the Senior Policy Advisor for the Office of Electricity Delivery and Energy Reliability, Office of Infrastructure Security and Energy Restoration, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585; (202) 536-0379 (
Environmental Protection Agency (EPA).
Proposed rule.
EPA finds that the Mendenhall Valley nonattainment area in Alaska attained the National Ambient Air Quality Standard (NAAQS) for particulate matter with an aerodynamic diameter of less than or equal to a nominal ten micrometers (PM
Comments must be received on or before August 16, 2010.
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2010-0432, by any of the following methods:
•
•
•
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Steve Body at telephone number: (206) 553-0782, e-mail address:
For further information, please see the direct final action, of the same title, which is located in the Rules section of this
If EPA receives adverse comments, EPA will withdraw the direct final rule and it will not take effect. EPA will address all public comments in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Environmental Protection Agency (EPA).
Notice of determination and close of public comment period.
The Environmental Protection Agency (EPA, “we” or “the Agency”) has determined that the Department of Energy's (DOE) Compliance Recertification Application (CRA or “application”) for the Waste Isolation Pilot Plant (WIPP) is complete. EPA provided written notice of the completeness decision to the Secretary of Energy on June 29, 2010. The text of the letter is contained in the
EPA opened the public comment period upon receipt of the 2009 CRA (74 FR 28468, June 16, 2009). Comments must be received on or before August 16, 2010.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2009-0330, by one of the following methods:
•
•
•
•
Ray Lee, Radiation Protection Division, Center for Radiation Information and Outreach, Mail Code 6608J, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, Washington, DC 20460;
1.
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
The Waste Isolation Pilot Plant (WIPP) was authorized in 1980, under section 213 of the DOE National Security and Military Applications of Nuclear Energy Authorization Act of 1980 (Pub. L. 96-164, 93 Stat. 1259, 1265), “for the express purpose of providing a research and development facility to demonstrate the safe disposal of radioactive wastes resulting from the defense activities and programs of the United States.” WIPP is a disposal system for transuranic (TRU) radioactive waste. Developed by DOE, WIPP is located near Carlsbad in southeastern New Mexico. TRU waste is emplaced 2,150 feet underground in an ancient layer of salt that will eventually “creep” and encapsulate the waste containers. WIPP has a total capacity of 6.2 million cubic feet of TRU waste.
The 1992 WIPP Land Withdrawal Act (LWA; Pub. L. 102-579)
WIPP must meet EPA's generic disposal standards at 40 CFR part 191, subparts B and C, for high-level and TRU radioactive waste. These standards limit releases of radioactive materials from disposal systems for radioactive waste, and require implementation of measures to provide confidence for compliance with the radiation release limits. Additionally, the regulations limit radiation doses to members of the public, and protect ground water resources by establishing maximum concentrations for radionuclides in ground water. To determine whether WIPP performs well enough to meet these disposal standards, EPA issued the WIPP Compliance Criteria (40 CFR part 194) in 1996. The Compliance Criteria interpret and implement the disposal standards specifically for the WIPP site. They describe what information DOE must provide and how EPA evaluates the WIPP's performance and provides ongoing independent oversight. Thus, EPA implemented its environmental radiation protection standards, 40 CFR part 191, by applying the WIPP Compliance Criteria, 40 CFR part 194, to the disposal of TRU radioactive waste at the WIPP. For more information about 40 CFR part 191, refer to
Using the process outlined in the WIPP Compliance Criteria, EPA determined on May 18, 1998 (63 FR 27354), that DOE had demonstrated that the WIPP facility will comply with EPA's radioactive waste disposal regulations at subparts B and C of 40
Since the 1998 certification decision (and the initial recertification decision in 2006) EPA has conducted ongoing independent technical review and inspections of all WIPP activities related to compliance with the EPA's disposal regulations. The certification decision identified the starting (baseline) conditions for WIPP and established the waste and facility characteristics necessary to ensure proper disposal in accordance with the regulations. At that time, EPA and DOE understood that future information and knowledge gained from the actual operation of WIPP would result in changes to the best practices and procedures for the facility.
In recognition of this, section 8(f) of the amended WIPP LWA requires EPA to evaluate all changes in conditions or activities at WIPP every five years to determine if WIPP continues to comply with EPA's disposal regulations for the facility. This determination is not subject to standard rulemaking procedures or judicial review, as stated in the aforementioned section of the WIPP Land Withdrawal Act. The first recertification process (2004-2006) included a review of all of the changes made at WIPP since the original 1998 EPA certification decision up until the receipt of the initial CRA in March 2004. This second recertification process includes a review of all the changes made at the facility since March 2004.
Recertification is not a reconsideration of the decision to open WIPP, but a process to reaffirm that WIPP meets all requirements of the disposal regulations. The recertification process will not be used to approve any new significant changes proposed by DOE; any such proposals will be addressed separately by EPA. Recertification will ensure that WIPP is operated using the most accurate and up-to-date information available and provides documentation requiring DOE to operate to these standards.
EPA received DOE's initial CRA on March 26, 2004, and subsequently opened a public comment period on the application and the Agency's intent to evaluate compliance with the disposal regulations and compliance criteria in the
EPA received DOE's second CRA on March 24, 2009, and announced the Agency's intent to evaluate compliance with the disposal regulations and compliance criteria in the
In a letter dated June 29, 2010, from EPA's Director of the Office of Radiation and Indoor Air to the Secretary of Energy, the Agency notified DOE that the 2009 CRA for WIPP is complete. This determination is solely an administrative measure and does not reflect any conclusion regarding WIPP's continued compliance with the disposal regulations.
This determination was made using a number of the Agency's WIPP-specific guidances; most notably, the “Compliance Application Guidance” (CAG; EPA Pub. 402-R-95-014) and “Guidance to the U.S. Department of Energy on Preparation for Recertification of the Waste Isolation Pilot Plant with 40 CFR Parts 191 and 194” (Docket A-98-49, Item II-B3-14; December 12, 2000). Both guidance documents include guidelines regarding: (1) Content of certification/recertification applications; (2) documentation and format requirements; (3) time frame and evaluation process; and (4) change reporting and modification. The Agency developed these guidance documents to assist DOE with the preparation of any compliance application for the WIPP. They are also intended to assist in EPA's review of any application for completeness and to enhance the readability and accessibility of the application for EPA and public scrutiny.
EPA has been reviewing the CRA for “completeness” since its receipt. EPA's review identified several areas of the application where additional information was necessary to perform a technical evaluation. EPA sent five letters to DOE requesting additional information, which are detailed below:
• May 21, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0004)—EPA requested additional information on the performance assessment and chemical portions of the CRA-2009.
• July 16, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0005)—EPA requested additional information on waste inventory, performance assessment calculations/code documentation, human intrusion, and chemistry (including karst comments raised by stakeholders).
• October 19, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0006)—EPA requested additional information on waste inventory, chemistry, features/events/processes (FEPs), and performance assessment paramaters/codes.
• January 25, 2010 (addendum to 5/21/09 letter via e-mail; Docket ID: EPA-HQ-OAR-2009-0330-0013, 0013.1)—EPA requested additional information conceptual models and modeling calculations.
• February 22, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0015)—EPA requested additional information on repository chemistry issues.
DOE submitted the requested information with a series of ten letters, which were sent on the following dates:
• August 24, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0007, 0007.1-0007.4).
• September 30, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0008, 0008.1-0008.9).
• November 25, 2009 (Docket ID: EPA-HQ-OAR-2009-0330-0011, 0011.1-0011.3).
• January 12, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0008, 0008.1-0008.9).
• February 22, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0012, 0012.1-0012.6).
• March 31, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0014, 0014.1-0014.3).
• April 12, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0016, 0016.1-0016.3).
• April 19, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0017, 0017.1).
• May 26, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0018, 0018.1-0018.3).
• June 24, 2010 (Docket ID: EPA-HQ-OAR-2009-0330-0025, 0025.1-0025.2).
Since receipt of the 2009 CRA, the Agency has received a number of public comments from stakeholder groups regarding both the completeness and technical adequacy of the recertification application. In addition to soliciting written public comments, EPA held a series of public meetings in New Mexico (June 2009 and May 2010) to discuss stakeholders concerns and issues related to WIPP recertification. These comments helped in developing EPA's
EPA will now undertake a full technical evaluation on the complete 2009 CRA in determining whether the WIPP continues to comply with the radiation protection standards for disposal. EPA will also consider any additional public comments and other information relevant to WIPP's compliance. The Agency is most interested in whether new or changed information has been appropriately incorporated into performance assessment calculations for WIPP, and whether the potential effects of changes are properly characterized.
If EPA approves the application, it will set the parameters for how WIPP will be operated by DOE over the following five years. The approved CRA will then serve as the baseline for the next recertification. As required by the WIPP LWA, the Agency will make a final recertification decision within six months of issuing its completeness determination.
Dear Mr. Secretary: Pursuant to Section 8(f) of the Waste Isolation Pilot Plant (WIPP) Land Withdrawal Act, as amended, and in accordance with the WIPP Compliance Criteria at 40 CFR 194.11, I hereby notify you that the U.S. Environmental Protection Agency (EPA or “the Agency”) has determined that the U.S. Department of Energy's (DOE) 2009 Compliance Recertification Application (CRA) for WIPP is complete. This completeness determination is an administrative determination required under the WIPP Compliance Criteria, which implement the Agency's Final Radioactive Waste Disposal Regulations at Subparts B and C of 40 CFR Part 191. While the completeness determination initiates the six-month evaluation period provided for in Section 8(f)(2) of the Land Withdrawal Act, it does not have any generally applicable legal effect. Further, this determination does not imply or indicate that DOE's CRA demonstrates compliance with the Compliance Criteria and/or the Disposal Regulations.
Section 8(f) of the amended Land Withdrawal Act requires EPA to evaluate all changes in conditions or activities at WIPP every five years to determine if the facility continues to comply with EPA's disposal regulations. This second recertification process includes a review of all of the changes made at the WIPP facility since the initial 2004 CRA (and subsequent recertification decision, issued in 2006) was submitted by DOE.
Under the applicable regulations, EPA may recertify the WIPP only after DOE has submitted a “full” (or complete) application (see 40 CFR 194.11). Upon receipt of the CRA on March 24, 2009, EPA immediately began its review to determine whether the application was complete. Shortly thereafter, the Agency began to identify areas of the 2009 CRA that required supplementary information and analyses. In addition, EPA received public comments and held public meetings on the application that identified areas where additional information was needed for EPA's review.
EPA identified completeness concerns in a series of letters/e-mails from the Agency to Dr. Dave Moody, Manager for DOE's Carlsbad Field Office, as well as his staff. This correspondence is detailed below:
• May 21, 2009—EPA requested additional information on the performance assessment and chemical portions of the CRA-2009.
• July 16, 2009—EPA requested additional information on waste inventory, performance assessment calculations/code documentation, human intrusion, and chemistry (including karst comments raised by stakeholders).
• October 19, 2009—EPA requested additional information on waste inventory, chemistry, features/events/processes (FEPs), and performance assessment paramaters/codes.
• January 25, 2010 (addendum to 5/21/09 letter via e-mail)— EPA requested additional information conceptual models and modeling calculations.
• February 19, 2010—EPA requested additional information on repository chemistry issues.
DOE submitted the requested information with a series of 11 letters, which were sent on the following dates:
• August 24, 2009
• September 30, 2009
• November 25, 2009
• January 12, 2010
• February 22, 2010
• March 31, 2010
• April 12, 2010
• April 19, 2010
• May 26, 2010
• June 22, 2010
• June 28, 2010
All completeness-related correspondence was placed in our public docket (EDOCKET EPA-HQ-OAR-2009-0330) and on our website (
Based on the information provided by DOE, we conclude that the 2009 CRA is complete. Again, this is the initial, administrative step that indicates DOE has provided information relevant to each applicable provision of the WIPP Compliance Criteria and in sufficient detail for us to proceed with a full technical evaluation of the adequacy of the application. In accordance with Section 8(f)(2) of the amended Land Withdrawal Act, EPA will make its final recertification decision within six months of this letter.
To the extent possible, the Agency began conducting a preliminary technical review of the application upon its submittal by DOE, and has provided the Department with relevant technical comments on an ongoing basis. EPA will continue to conduct its technical review of the 2009 CRA as needed, and will convey further requests for additional information and analyses. The Agency will issue its compliance recertification decision, in accordance with 40 CFR Part 194 and Part 191, Subparts B and C, after it has thoroughly evaluated the complete CRA and considered relevant public comments. The public comment period on our completeness determination will remain open for 30 days following the publication of this letter in the
Thank you for your cooperation during our review process. Should your staff have any questions regarding this request, they may contact Tom Peake at (202) 343-9765 or by e-mail at
Sincerely,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations to implement Amendments 95 and 96 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI) and Amendment 87 to the FMP for Groundfish of the Gulf of Alaska (GOA), (collectively referred to as “the FMPs”). If approved, Amendment 95 would move skates from the “other species” category to the “target species” category in the FMP. Amendments 96 and 87 would revise the FMPs to meet the National Standard 1 guidelines for annual catch limits and accountability measures. These amendments would move all remaining species groups from the “other species” category to the “target species” category, remove the
Comments must be received by August 30, 2010.
Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-AY48, by any one of the following methods:
• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal at
• Mail: P.O. Box 21668, Juneau, AK 99802.
• Fax: (907) 586-7557.
• Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.
All comments received are a part of the public record. No comments will be posted to
NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Electronic copies of Amendments 95 and 96 to the FMP for Groundfish of the BSAI, Amendment 87 to the FMP for Groundfish of the GOA, the Environmental Assessments (EAs), and the Regulatory Impact Review (RIR) prepared for this action are available from the Alaska Region website at
Melanie Brown, 907-586-7228.
The groundfish fisheries in the exclusive economic zone of the BSAI and GOA are managed under the FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801
The Council has submitted Amendments 87, 95, and 96 for review by the Secretary of Commerce (Secretary), and a Notice of Availability of the FMP amendments was published in the
Comments may address the FMP amendments, the proposed rule, or both, but must be received by 1700 hours, A.D.T. on August 31, 2101, to be considered in the approval/disapproval decision on the FMP amendments. All comments received by that time, whether specifically directed to the FMP amendments or to this proposed rule, will be considered in the approval/disapproval decision on the FMP amendments.
Amendment 95 was unanimously adopted by the Council in October 2009. If approved by the Secretary, this amendment would move skates from the “other species” category to the “target species” list in the BSAI FMP, allowing the management of skates as a target species complex or as individual skate species. NMFS trawl survey and catch information show that 15 skate species occur in the BSAI. In the Bering Sea subarea, the most abundant species is the Alaska skate, while the most abundant species in the Aleutian Islands subarea is the whiteblotched skate. Individual species of skate could be listed under the skate complex in the “target species” list during the harvest specifications process to allow for management of these individual species.
Amendments 96 and 87 were unanimously adopted by the Council in April 2010. If approved by the Secretary, these amendments would revise the FMPs to meet the Magnuson-Stevens Act requirements to establish annual catch limits (ACLs) and accountability measures (AMs), and conform to the National Standard 1 (NS1) guidelines (74 FR 3178, January 16, 2009). The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (MSRA), which was signed into law on January 12, 2007, included new requirements regarding ACLs and AMs, which reinforce existing requirements to prevent overfishing and rebuild fisheries. NMFS revised the NS1 guidelines at 50 CFR 600.310 to integrate these new requirements with existing provisions related to overfishing, rebuilding overfished stocks, and achieving optimum yield. Section 104(a)(10) of the MSRA, codified as section 303(a)(15) of the Magnuson-Stevens Act, requires FMPs to establish mechanisms for specifying ACLs, including AMs. The provision states that FMPs shall “establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.” ACLs and AMs are required by fishing year 2011 in fisheries where overfishing is not occurring. None of the Alaska groundfish fisheries have overfishing occurring, and therefore the groundfish ACLs and AMs must be implemented by January 1, 2011.
Skate, shark, sculpin, and octopus groups are currently managed as a complex in the “other species” category in the BSAI. In the GOA, shark, sculpin, octopus, and squid groups are managed as a complex in the “other species” category. Each year, the overfishing limit (OFL), acceptable biological catch (ABC), and total allowable catch (TAC) are specified for the “other species” category as a whole in each management area. National Standard 1 guidelines require species managed in a stock complex to have similar life histories, but the current “other species” category combines the management of short-lived invertebrates (squids and octopuses) with long-lived fish (sharks and skates).
If approved, Amendment 95 would move BSAI skates from the “other species” category to the “target species” category and require annual specification of OFL, ABC, and TAC for the skate group as a whole or for individual skate species. Amendments 96 and 87 would remove the remaining species groups from the “other species” category in each FMP and place these groups in the “target species” category. The “other species” category would be completely removed from the FMPs. Managing skates, sculpins, sharks, octopuses, and squids as separate groups or as individual species, each with its own OFL, ABC, ACL, and TAC, would enhance NMFS' ability to control
A retrospective analysis in the EA for Amendments 96 and 87 of past shark and octopus harvest compared to the 2010 ABCs and OFLs showed that potential harvests of these species may exceed ABCs and OFLs without NMFS inseason management to control incidental catch (see ADDRESSES). If the TACs for these groups are insufficient to support a directed fishery, a vessel's harvest of sharks and octopuses would be limited to a maximum retainable amount, representing a percentage of the amount of “target species” harvested by a vessel. If closing directed fishing for sharks and octopuses, together with applicable limits on retention, is not sufficient to prevent reaching the ABCs and OFLs for these groups, NMFS inseason management would use observed catch, fish ticket, and vessel monitoring system data to determine the most effective actions to prevent overfishing, while minimizing adverse impacts to fishing communities, to the extent practicable. Controlling incidental harvests of BSAI and GOA octopuses may require temporary closure of areas of high octopus retention to Pacific cod pot gear vessels. If necessary, BSAI and GOA shark incidental harvest would likely be constrained by temporarily restricting harvesting locations for hook-and-line sablefish and Pacific cod fisheries and the trawl pollock fishery. Because BSAI and GOA octopus have been sold, information is available to estimate changes in potential revenue from the proposed action. The estimated revenue for BSAI and GOA octopus is decreased $110,000 to $155,000 based on the retrospective harvest and inseason management methods. Increased costs may occur if fishing operations have to travel further to reach alternative fishing grounds, or if they must fish in areas with lower catch-per-unit of effort (and thus incur increased costs of fishing effort to catch the same amount of fish). Decreased revenues may occur if increased travel or fishing time requirements makes it impossible to catch the same amount of fish in the time available. Decreased revenues also may occur if shifts in fishing activity make it harder to deliver a quality product.
The Council recommended, and the Secretary proposes, the following regulatory revisions and additions to 50 CFR part 679 to implement Amendments 87, 95, and 96.
The definitions for “groundfish”, “license limitation groundfish”, and “target species,” in § 679.2, would be revised to remove reference to the “other species” category. Removing the term “other species category” from these definitions would reduce confusion related to target species and the harvest specifications, as Amendments 96 and 87 would remove the “other species” category from the FMPs for purposes of the harvest specifications, and leave only “target species” as a category for which NMFS must establish harvest specifications. The definition for “other species” would be revised to allow the continued management of BSAI and GOA sharks, sculpins, and octopuses and GOA squids as a group for purposes of prohibited species catch under § 679.21 and maximum retainable amounts specified in Tables 10 and 11 to part 679.
Section 679.20 would be revised by removing the term “other species category” in paragraphs related to harvest limits, reserves, harvest specifications, and fishery closures. This revision would ensure the regulations for harvest specifications and “target species” management are consistent with Amendments 96 and 87, which would remove “other species” from the FMP for purposes of harvest specifications and inseason management.
Section 679.25 would be revised to remove the “other species” category from the paragraph related to reopening an area to achieve TAC for a target species. This revision would ensure the regulations are consistent with removing “other species” from the FMP for purposes of target species management.
Table 2a to part 679 would be revised to add whiteblotched, Alaska, and Aleutian skates, as well as the scientific names for individual skate species. Adding these individual skate species and the scientific names would facilitate the reporting of individual skate species taken during groundfish harvest and would provide more detailed information regarding skate harvests for stock assessments and fisheries management. This revision would ensure the regulations are consistent with Amendment 95, providing the species specific information to support managing skates as a target species group or as individual target species.
Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendments 87, 95, and 96, other provisions of the Magnuson-Stevens Act and other applicable laws, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for the purposes of E. O. 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
For purposes of this analysis, a “small entity” is any entity that catches, or catches and processes, less than $4.0 million gross ex-vessel value (or first wholesale gross product value) of groundfish per year.
The proposed regulatory changes for Amendments 96 and 87 do not impose, increase, relax, or remove substantive restrictions on any entity. This proposed regulatory action is not the only regulatory action that the agency will take to implement these amendments, and it does not give effect to these FMP amendments in a manner that will directly impact regulated entities. Because no entities will be directly regulated by the portion of the proposed rule for Amendments 96 and 87, no small entities will be directly regulated by the proposed action for Amendments 96 and 87. Therefore, the proposed action that implements Amendments 96
The portion of the proposed rule to implement Amendment 95 may directly regulate small entities, although as noted below, the impacts would not be significant. The entities directly regulated by this action, if adopted, would be the Community Development Quota (CDQ) and non-CDQ fishing operations harvesting species in the “other species” complex in the BSAI, using hook-and-line, pot, or trawl gear. Vessels generally are harvesting skates and the remaining species in the “other species” category, incidentally to other targeted fishing operations; (e.g., fishing for Pacific cod); none of the species in the “other species” category are currently fished as a target. Because any hook-and-line, pot, or trawl operation in the BSAI may harvest the “other species” complex, the universe of potentially directly regulated operations includes all BSAI hook-and-line, pot, and trawl vessels.
In 2007, the universe of potentially directly regulated vessels that caught (or caught and processed) less than $4.0 M gross ex-vessel value (or first wholesale gross product value) of groundfish or “other species,” totaled 212 vessels in the BSAI. This included 40 hook-and-line vessels, 71 pot vessels, and 103 trawlers. The portion of the proposed action to implement Amendment 95 potentially applies to all of these entities.
For RFA purposes, the entity size determination is based on operation gross annual revenues from groundfish fishing in and off Alaska. This likely “understates” the actual annual gross revenues earned by many of these operations, because income from non-groundfish commercial fishing activities is not included, owing to an absence of germane data. Moreover, data are not available to fully take account of affiliations between fishing operations and associated processors, or other associated fishing operations. For these reasons, these counts likely overstate the numbers of small entities potentially directly regulated by the proposed action. Average groundfish gross revenues, in 2007, for these small entities were estimated to be $670,000 for hook-and-line catcher vessels, $2.27 million for hook-and-line catcher processors, $1,400,000 for pot catcher vessels, and $1.91 million for trawl catcher vessels (AFSC did not report information for pot and trawl catcher-processors).
The impacts of this action have been evaluated in the accompanying RIR (See ADDRESSES). The proposed regulatory changes to accompany Amendments 96 and 87 do not impose, increase, relax, or remove substantive restrictions on any entity. Because this portion of the proposed action does not directly regulate any entities, this portion of the proposed action would not have any discernible impacts on small entities.
The proposed regulatory amendment for Amendment 95 would change the codes required for reporting skate catches, and to this extent would further restrict entity behavior. Vessel operators would need to learn how to identify three individual skate species and use the proposed species code from Table 2a to part 679 in their harvest reports. However, all skate harvest must currently be reported using a code from Table 2a to part 679. Once the operator learns how to identify the skate species and becomes familiar with the proposed codes, the expense of reporting skate harvests would be similar to that currently experienced. The RIR notes that this portion of the proposed action is expected to have
The two criteria recommended to determine the significance of the economic impacts of the action are disproportionality and profitability.
As noted above, there are no economic impacts caused by the portion of the proposed action that implements Amendments 87 and 96. That portion of the proposed action will not result in disproportionate impacts nor impacts on profitability of regulated entities, and therefore will not impose significant economic impacts.
Because the impact of reporting skates under the portion of the proposed action that implements Amendment 95 would be a
NMFS guidelines for economic review of regulatory actions explain that the term “substantial number” has no specific statutory definition and the criterion does not lend itself to objective standards applicable across all regulatory actions. Rather, a “substantial number” depends upon the context of the action, the problem to be addressed, and the structure of the regulated industry. The Small Business Administration casts “substantial” within the context of “more than just a few” or
As described above, the portion of the proposed action that implements Amendments 87 and 96 would not directly regulate any small entities, and therefore would not impose impacts on a “substantial number” of small entities.
Although a substantial number of small entities may be directly regulated by the portion of the proposed action to implement Amendment 95, the impacts are estimated to be
As a result, an initial regulatory flexibility analysis is not required, and none has been prepared.
Alaska, Fisheries, Reporting and recordkeeping requirements.
For reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:
1. The authority citation for part 679 continues to read as follows:
16 U.S.C. 773
2. In § 679.2, revise paragraph (2) of the definition for “Groundfish”, and the definitions of “License limitation groundfish”, “Other species” and “Target species” to read as follows:
(2) Target species specified annually pursuant to § 679.20(a)(2) (See also the definitions for:
3. In § 679.20, revise paragraphs (a)(1)(i) introductory text, (a)(2), (a)(3) introductory text, (a)(3(i), (b)(1)(i), (b)(2) introductory text, (c)(1)(iii), (c)(1)(iv), (c)(3)(ii), (c)(3)(iii), (d)(1)(i), (d)(1)(iii)(B), and (d)(2) to read as follows:
(a) * * *
(1) * * *
(i)
(2)
(3)
(i)
(b) * * *
(1) * * *
(i)
(2)
(c) * * *
(1) * * *
(iii)
(iv)
(3) * * *
(ii)
(iii)
(d) * * *
(1) * * *
(i)
(iii) * * *
(B)
(2)
4. In § 679.25, revise paragraph (a)(2)(iii)(D) to read as follows:
(a) * * *
(2) * * *
(iii) * * *
(D) Reopening of a management area or season to achieve the TAC or gear share of a TAC for any of the target species.
5. Revise Table 2a to part 679 to read as follows:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has denied a petition (No. 2010014) for trade adjustment assistance (TAA) for apples that was filed by the New York Apple Association and accepted for review by USDA on May 4, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or full official marketing season, a greater than 15-percent decline in at least one of the following factors: national average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive, during the same marketing period, contributed importantly to the decrease in one of the above factors for the agricultural commodity.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service and Foreign Agricultural Service. After a review, the Administrator determined that the import data did not meet the regulatory requirement for the most recent, official USDA full marketing year or full marketing season data. Because the petition was unable to meet this regulatory requirement, it did not qualify for certification for Fiscal Year (FY) 2010.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has denied a petition (No. 2010017) for trade adjustment assistance (TAA) for apples that was filed by the Minnesota Apple Growers Association, Inc. (MAGA) and accepted for review by USDA on May 4, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or full official marketing season, a greater than 15-percent decline in at least one of the following factors: national average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive, during the same marketing period, contributed importantly to the decrease in one of the above factors for the agricultural commodity.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service and Foreign Agricultural Service. After a review, the Administrator determined that the petition was unable to demonstrate an increase in fresh apple imports during the August-December 2009/2010 marketing season. Instead, it demonstrated that imports of fresh apples declined 30 percent during this period, compared to the previous 3-year average. For this reason, the petition does not meet the regulatory requirements for certification for Fiscal Year (FY) 2010.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has denied a petition (No. 2010006) for trade adjustment assistance (TAA) for prunes and dried plums that was filed by the Prune Bargaining Association and accepted for review by USDA on May 4, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or full official marketing season, a greater than 15-percent decline in at least one of the following factors: national average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive,
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service, and Foreign Agricultural Service. After a review, the Administrator determined that the import data did not meet the regulatory requirement for the most recent, official USDA full marketing year or full marketing season data. Because the petition was unable to meet this regulatory requirement, it did not qualify for certification for Fiscal Year (FY) 2010.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has denied a petition (No. 2010009) for trade adjustment assistance (TAA) for apples that was filed by the Michigan Agricultural Cooperative Marketing Association and accepted for review by USDA on May 4, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or full official marketing season, a greater than 15-percent decline in at least one of the following factors: national average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive, during the same marketing period, contributed importantly to the decrease in one of the above factors for the agricultural commodity.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service, and Foreign Agricultural Service. After a review, the Administrator determined that the import data did not meet the regulatory requirement for the most recent, official USDA full marketing year or full marketing season data. Because the petition was unable to meet this regulatory requirement, it did not qualify for certification for Fiscal Year (FY) 2010.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has denied a petition (No. 2010007) for trade adjustment assistance (TAA) for spiny lobsters that was filed by the Florida Keys Commercial Fishermen's Association and accepted for review by USDA on May 3, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or full official marketing season, a greater than 15-percent decline in at least one of the following factors: national average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive, during the same marketing period, contributed importantly to the decrease in one of the above factors for the agricultural commodity.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service, and Foreign Agricultural Service. After a review, the Administrator determined that the quantity of spiny lobsters imported during January-December 2009 was 22 percent lower, compared to the previous 3-year average. In order to qualify, recent marketing period imports must be higher than the previous 3-year average. Because the petition was unable to meet the regulatory requirement for increased imports, it did not qualify for certification for Fiscal Year (FY) 2010.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has certified a petition (No. 2010001) for trade adjustment assistance (TAA) for catfish that was filed by the Catfish Farmers of America and accepted for review by USDA on May 3, 2010. Individual producers, nationwide, will be eligible to apply for Fiscal Year (FY) 2010 benefits during an application period ending September 23, 2010.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of
Individual catfish producers, nationwide, interested in applying for technical training and cash benefits must complete and submit a written application to their local Farm Service Agency Service Center by the application deadline of September 23, 2010. After submitting a completed application, producers may receive technical assistance at no cost and may receive cash benefits, if the applicable program eligibility requirements are satisfied. Applicants must complete the technical assistance under the program in order to be eligible for cash benefits.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has certified a petition (No. 2010005) for trade adjustment assistance (TAA) for shrimp that was filed by the Southern Shrimp Alliance and accepted for review by USDA on May 3, 2010. Individual producers in Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Texas will be eligible to apply for Fiscal Year (FY) 2010 benefits during an application period ending September 23, 2010.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service, and Foreign Agricultural Service. Upon a review, the Administrator (FAS) determined that increased imports of shrimp during January-December 2008 contributed importantly to a greater than 15-percent decline in the quantity of production in 2008, compared to the previous 3-year average. This conforms to the eligibility requirements stipulated in Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210).
Individual shrimp producers in Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Texas interested in applying for technical training and cash benefits must complete and submit a written application to their local Farm Service Agency Service Center by the application deadline of September 23, 2010. After submitting a completed application, producers may receive technical assistance at no cost and may receive cash benefits, if the applicable program eligibility requirements are satisfied. Applicants must complete the technical assistance under the program in order to be eligible for cash benefits.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has denied a petition (No. 2010002) for trade adjustment assistance (TAA) for U.S. lobster (Homarus americanus) that was filed by the Maine Lobstermen's Association and accepted for review by USDA on May 3, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or full official marketing season, a greater than 15-percent decline in at least one of the following factors: national average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive, during the same marketing period, contributed importantly to the decrease in one of the above factors for the agricultural commodity.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service, and Foreign Agricultural Service. After a review, the Administrator determined that while the petition meets the program's `greater than 15-percent decline' eligibility requirement, import data for the same time period showed a 1.1-percent decrease, rather than the required increase. For this reason, the petition does not meet the regulatory requirements for certification for Fiscal Year (FY) 2010.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) denied a petition (No. 2010010) for trade adjustment assistance (TAA) for fresh blue crabs that was filed by a group of Georgia fresh blue crab producers and accepted for review by USDA on May 3, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or full official marketing season, a greater than 15-percent decline in at least one of the following factors: National average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive, during the same marketing period, contributed importantly to the decrease in one of the above factors for the agricultural commodity.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service, and Foreign Agricultural Service. After a review, the Administrator determined that the quantity of fresh and frozen blue crab imports declined by 8.5 percent during 2009, compared to the previous 3-year average. In order to qualify, recent marketing period imports must be higher than the average of the previous 3 years. Because the petition was unable to meet the regulatory requirement for increased imports, it did not qualify for certification for Fiscal Year (FY) 2010.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has certified a petition (No. 2010003) for trade adjustment assistance (TAA) for asparagus that was filed by the National Asparagus Council and accepted for review by USDA on May 3, 2010. Individual producers, nationwide, will be eligible to apply for Fiscal Year (FY) 2010 benefits during an application period ending September 23, 2010.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service, and Foreign Agricultural Service. Upon a review, the Administrator determined that increased imports of asparagus during January-December 2009 contributed importantly to a greater than 15-percent decline in the quantity of production in 2009, compared to the previous 3-year average. This conforms to the eligibility requirements stipulated in Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210).
Individual asparagus producers, nationwide, interested in applying for technical training and cash benefits must complete and submit a written application to their local Farm Service Agency Service Center by the application deadline of September 23, 2010. After submitting a completed application, producers may receive technical assistance provided at no cost and may receive cash benefits, if the applicable program eligibility requirements are satisfied. Applicants must complete the technical assistance provided under the program in order to be eligible for cash benefits.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has denied a petition (No. 2010011) for trade adjustment assistance (TAA) for cranberries that was filed by a group of New Jersey cranberry producers and accepted for review by USDA on May 3, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or full official marketing season, a greater than 15-percent decline in at least one of the following factors: national average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive, during the same marketing period, contributed importantly to the decrease in one of the above factors for the agricultural commodity.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service and Foreign Agricultural Service. After a review, the Administrator determined that New Jersey cranberry prices for the official USDA marketing year were higher in 2009/2010 than the previous 3-year average. For this reason, it does not meet the regulatory requirements for certification for Fiscal Year (FY) 2010.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has denied a petition (No. 2010008) for trade adjustment assistance (TAA) for crawfish that was filed by the Louisiana Crawfish Farmers Association and accepted for review by USDA on May 3, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or official marketing season, a greater than 15-percent decline in at least one of the following factors: National average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive, during the same marketing period, contributed importantly to the decrease in one of the above factors for the agricultural commodity.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service, and Foreign Agricultural Service. After a review, the Administrator determined that the import data provided did not meet the regulatory requirement for the most recent, official USDA full marketing year or full marketing season. Because the petition was unable to meet this regulatory requirement, it did not qualify for certification for Fiscal Year (FY) 2010.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has denied a petition (No. 2010016) for trade adjustment assistance (TAA) for cranberries that was filed by one Washington and two Oregon cranberry growers and accepted for review by USDA on May 3, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or full official marketing season, a greater than 15-percent decline in at least one of the following factors: National average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive, during the same marketing period, contributed importantly to the decrease in one of the above factors for the agricultural commodity.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of Chief Economist, Farm Service Agency, Agricultural Marketing Service, and Foreign Agricultural Service. After a review, the Administrator determined that a significant increase in cranberry production, along with high inventory levels, were the primary factors affecting Oregon and Washington cranberry grower prices in 2009/2010. As a result, it was found that imports were not an important factor in determining the average annual price of Oregon and Washington cranberries in 2009/2010. For this reason, the petition does not meet the regulatory requirements for certification for Fiscal Year (FY) 2010.
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
Foreign Agricultural Service, USDA.
Notice.
The Administrator of the Foreign Agricultural Service (FAS) has denied a petition (No. 2010004) for trade adjustment assistance (TAA) for cut lilies that was filed by the North Carolina Flower Growers Association and accepted for review by USDA on May 3, 2010.
To qualify under the program, Subtitle C of Title I of the Trade Act of 2002 (Pub. L. 107-210) states that petitions must demonstrate, using data for the most recent, full marketing year or full official marketing season, a greater than 15-percent decline in at least one of the following factors: national average price, quantity of production, value of production, or cash receipts.
According to the statute, it is also necessary for the petition to demonstrate that an increase in imports of articles like or directly competitive, during the same marketing period, contributed importantly to the decrease in one of the above factors for the agricultural commodity.
All petitions were analyzed by USDA's Economic Research Service and reviewed by the TAA for Farmers Review Committee, comprised of representatives from USDA's Office of the Chief Economist, Farm Service Agency, Agricultural Marketing Service and Foreign Agricultural Service. After a review, the Administrator determined that the average unit price of cut lilies in marketing year 2009/2010, compared with the previous 3-year average, decreased by less than 15 percent. To qualify for the program, average unit price in the most recent marketing year, compared to the previous 3-year
Trade Adjustment Assistance for Farmers Staff, FAS, USDA, by phone: (202) 720-0638, or (202) 690-0633; or by e-mail:
The United States Patent and Trademark Office (USPTO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chap. 35).
Once submitted, the request will be publicly available in electronic format through the Information Collection Review page at
Paper copies can be obtained by:
•
•
•
Written comments and recommendations for the proposed information collection should be sent on or before August 16, 2010 to Nicholas A. Fraser, OMB Desk Officer, via e-mail to
Import Administration, International Trade Administration, Department of Commerce.
On July 7, 2010, the United States Court of International Trade sustained the Department of Commerce's results of redetermination on remand concerning the final results of the administrative review of the antidumping duty order on ball bearings and parts thereof from Germany.
Hermes Pinilla or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3477 or (202) 482-4477.
On September 11, 2008, the Department of Commerce (the Department) published the final results of the administrative reviews of the antidumping duty orders on ball bearings and parts thereof from France, Germany, Italy, Japan, and the United Kingdom for the period May 1, 2006, through April 30, 2007.
In its remand order, the CIT directed the Department to “recalculate SKF {Germany's} margin after redetermining the constructed value of the subject merchandise SKF {Germany} obtained from the unaffiliated supplier” using information that is not adverse to SKF Germany.
In
As a result of changes to calculations in our remand results, the weighted-average margin for SKF Germany for the period May 1, 2006, through April 30, 2007, changed from 4.15 percent to 1.97 percent. Accordingly, absent an appeal or, if appealed, upon a “conclusive” court decision, we will amend our final results of this review to reflect the recalculation of the margin for SKF Germany.
The United States Court of Appeals for Federal Circuit (CAFC) has held that the Department must publish notice of a decision of the CIT or the CAFC which is not in harmony with the Department's determination.
Because entries of ball bearings and parts thereof from Germany produced by, exported to, or imported into the United States by SKF Germany are currently being suspended pursuant to the court's injunction order in effect, the Department does not need to order U.S. Customs and Border Protection to suspend liquidation of affected entries. The Department will not order the lifting of the suspension of liquidation on applicable entries of ball bearings and parts thereof from Germany made during the review period before a court decision in this lawsuit becomes final and conclusive.
We are issuing and publishing this notice in accordance with section 516A(c)(1) of the Tariff Act of 1930, as amended.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of 90-day petition finding.
We, NMFS announce a 90-day finding on a petition to revise critical habitat for the endangered leatherback sea turtle under the Endangered Species Act (ESA). We find that the petition does not present substantial scientific information indicating that the petitioned action may be warranted for leatherback sea turtles and their habitat under our jurisdiction.
Dennis Klemm, NMFS, Southeast Regional Office, Protected Resources Division,
On February 23, 2010, we received a petition from the Sierra Club asking us and the United States Fish and Wildlife Service (USFWS) to revise, pursuant to the ESA, critical habitat for the endangered leatherback sea turtle. Under the ESA, NMFS and USFWS each have respective areas of jurisdiction over sea turtles, as clarified by the 1977 Memorandum of Understanding Defining the Roles of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service in Joint Administration of the Endangered Species Act of 1973 as to Marine Turtles. NMFS has jurisdiction over sea turtles and their associated habitats in the marine environment, while USFWS has jurisdiction when sea turtles are on land. Thus, if Federal agencies are involved in activities that may affect sea turtles involved in nesting behavior, or may affect their nests or their nesting habitats, those Federal agencies are required to consult with the USFWS under section 7 of the ESA to ensure that their activities are not likely to jeopardize the continued existence of the sea turtles. If a Federal action may affect sea turtles while they are in the marine environment, feeding and migrating for example, the Federal agency involved must engage in a section 7 consultation with NMFS, to ensure that the action is not likely to jeopardize the continued existence of the sea turtles. Similarly, if critical habitat has been designated, and Federal actions may affect such habitat, an ESA section 7 consultation would be required to ensure that the Federal action is not likely to destroy or adversely modify the critical habitat; if the habitat has been designated on land the consultation would be with USFWS, and if the habitat has been designated in the marine environment, the consultation would be with NMFS. This 90-day finding is responsive only to aspects of the petition that fall under our jurisdiction.
The portion of the petitioned critical habitat that falls under NMFS' jurisdiction is described in the petition as: “the waters off the coastline of the Northeast Ecological Corridor of Puerto Rico, sufficient to protect leatherbacks using the Northeast Ecological Corridor, and extending at least to the hundred fathom contour, or 9 nautical miles offshore, whichever is further, and including the existing marine extensions of Espiritu Santo, Cabezas de San Juan, and Arrecifes de la Cordillera Nature Reserves.” The petition also asserts that the beaches of the Northeast Ecological Corridor of Puerto Rico
Section 4(b)(3)(D) of the ESA of 1973, as amended (16 U.S.C. 1533
The petition asserts that the revision of leatherback critical habitat to include the waters off the Northeast Ecological Corridor of Puerto Rico is necessary to protect leatherback sea turtles. The petitioner cites a number of studies about the population status of leatherback sea turtles in the Pacific Ocean, and concludes that populations of leatherback sea turtles in the Atlantic Ocean could experience a similar decline if their habitat is not protected.
The petition identifies the nesting beaches and the open water space off the nesting beaches as the essential features of critical habitat. The petition accurately states what little is known from a few accounts of leatherback mating behavior, that it seems to occur, at least in part, in areas adjacent to nesting beaches. The petition states “ the near-shore coastal waters provide room for turtles to mate and to access the beaches, and for hatchlings and adults to leave the beaches after nesting. If these waters are disturbed, reproductive success is likely to decline.” Open marine space to access beaches for the purposes of nesting may be relevant to USFWS' review of the petition because nesting activities, and section 7 consultations regarding impacts to such activities are under their jurisdiction.
For leatherback sea turtles, we cannot identify, nor has the petitioner presented, any specific values, ranges, or qualities of “open space,” or any thresholds for the quantity of “open space” necessary for hatchling access to open water or for courtship and mating by adults that explains how such space is “essential” to the conservation of the species. The petition merely identifies an area and suggests that all the space therein that could be occupied by leatherback sea turtles should be included in the critical habitat designation. As explained below, this lack of differentiation of habitat used by leatherback sea turtles does not provide substantial information to either identify physical or biological features, or explain how such features could be essential to the species' conservation.
The petition describes the open space feature as all of the marine environment from the coastline of the Northeast Ecological Corridor of Puerto Rico extending to the hundred fathom contour or 9 nautical miles, whichever is further. The 9 nautical mile boundary is based simply on the political boundary of Puerto Rico's territorial waters but has no demonstrated scientific/ecological basis as defining a boundary for a biological or physical feature to be included in a critical habitat designation. The “space” within this area is too varied and undefined to comprise a tangible physical feature, and instead seems to comprise simply all of the space that leatherback sea turtles could theoretically occupy between the shore and the 9 nautical mile or 100 fathom boundary. A critical habitat designation requires the identification of some parameters or values for physical or biological features included in a designation, so that the features can be effectively and meaningfully protected by a designation, including through section 7 consultations evaluating the effects of Federal agency actions on critical habitat through application of the destruction or adverse modification standard. This petition, however, includes no information that would provide a basis for implementing section 7 consultations on impacts to designated critical habitat, because no sufficiently defined features of the habitat have been identified, so there is no habitat aspect that could be identified as being impacted by a proposed Federal action, and thus no trigger for section 7 consultation. As discussed above, our regulations at 50 CFR 424.14(c)(2) specifically direct us to consider whether a petition contains this information.
The petition also cites our 1979 designation of critical habitat off the nesting beaches of Sandy Point, St. Croix (50 CFR 226.207; 44 FR 17711, March 23, 1979) as rationale for likewise designating the waters off the Northeast Ecological Corridor of Puerto Rico. However, that designation did not identify physical or biological features that are essential to the leatherback's conservation with any degree of specificity. As explained in our consultation handbook (USFWS NMFS 1998, at 4-39), many early critical habitat designations were issued without identification of constituent elements or habitat qualities essential to a species' conservation. The 1979 critical habitat designation off of St. Croix did not identify essential features for the leatherback's conservation, and thus that designation alone does not provide substantial information establishing that features meeting the ESA's definition of critical habitat exist in the nearshore waters off the Northeast Ecological Corridor of Puerto Rico.
Even if open space in the nearshore waters off the Northeast Ecological corridor out to either the 9 nautical mile or 100-fathom boundary could be viewed as a tangible physical feature, there is not substantial scientific or
As discussed above, the petitioner provided no information, nor is any available in the literature and other material readily available in our files, to prescribe some parameters of an open space feature off the Northeast Ecological Corridor that is essential to the leatherback sea turtle's conservation, thus there is not substantial scientific information indicating that habitat features may exist that meet the first two criteria of the definition of critical habitat. Without such parameters there is no basis on which to conclude that such a feature may require special management considerations or protections, to address potential threats or impacts to the feature, or management needs of the feature, to provide for the conservation of leatherback sea turtles. Thus, there is not substantial scientific information indicating the third aspect of the definition of critical habitat may be met that special management considerations may be required to protect essential physical or biological features to provide for the conservation of the species.
After considering the petition, the information cited by the petitioner, and relevant information readily available in our files, we conclude that, with respect to areas under NMFS' jurisdiction, the petition does not present substantial scientific information indicating that the petitioned revision of designated critical habitat for leatherback sea turtles may be warranted.
The authority for this action is the ESA, as amended (16 U.S.C. 1533
Import Administration, International Trade Administration, Department of Commerce.
July 16, 2010.
Austin Redington or Brandon Farlander, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-1664 and (202) 482-0182, respectively.
On February 21, 1995, the Department of Commerce (“Department”) published the antidumping duty order on stainless steel bar (“SSB”) from India.
Section 751(a)(3)(A) of the Act requires the Department to issue final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time period to a maximum of 180 days.
Completion of the final results of the administrative review within the 120-day period in this case is not practicable because, following the preliminary results, the Department received additional cost information from Venus, as requested by the Department, which required the Department to produce a post-preliminary analysis involving a comprehensive cost analysis, significantly delaying the briefing schedule.
This notice is published pursuant to sections 751(a) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Stephanie Moore or George McMahon, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave, NW, Washington, DC 20230; telephone: (202) 482-3692 or (202) 482-1167, respectively.
On December 23, 2009, the U.S. Department of Commerce (the Department) published a notice of initiation of the administrative review of the antidumping duty order on lightweight thermal paper from Germany (LTWP), covering the period November 20, 2008, to October 31, 2009.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires that the Department make a preliminary determination within 245 days after the last day of the anniversary month of an order for which a review is requested. Section 751(a)(3)(A) of the Act further states that if it is not practicable to complete the review within the time period specified, the administering authority may extend the 245-day period to issue its preliminary results to up to 365 days. We determine that completion of the preliminary results of this review within the 245-day period is not practicable because of the allegations raised by petitioner. Specifically, petitioner alleges that during the period of review (POR) Papierfabrik August Koehler AG and Koehler America, Inc. (collectively, Koehler) made a substantial number of sales below the cost of production in the home market, and that Koehler's home market sales of a certain model constitute a fictitious market.
During the investigation, the Department did not find that Koehler's sales were at prices less than the cost of production.
Given the complexity of the issues in this case, the Department needs more time to gather and analyze additional information. In accordance with section 751(a)(3)(A) of the Act, we are fully extending the time period for issuing the preliminary results of this review by 120 days. Therefore, the preliminary results are now due no later than December 7, 2010. The final results continue to be due 120 days after publication of the preliminary results.
This notice is published pursuant to sections 751(a)(3)(A) and 777(i)(1) of the Act.
The Emerging Technology and Research Advisory Committee (ETRAC) will meet on August 3 and 4, 2010, 8:30 a.m., Room 3884, at the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on emerging technology and research activities, including those related to deemed exports.
1. Welcome and introductions.
2. Remarks from the Bureau of Industry and Security Management.
3. Committee business.
4. Public comments.
5. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 sec. 10(a)(1) and 10(a)(3).
1. Welcome and introductions.
2. Committee business.
3. Committee work plan.
4. Public comments.
5. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via e-mail.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on July 8, 2010, pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 §§ (10)(d)), that the portion of the meeting dealing with matters the disclosure of portion of the meeting
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the Marine Mammal Protection Act (MMPA) regulations, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to Neptune LNG LLC (Neptune) to take marine mammals, by harassment, incidental to port commissioning and operations, including maintenance and repair activities, at its Neptune Deepwater Port.
Effective July 12, 2010, through July 11, 2011.
A copy of the authorization and application may be obtained by writing to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East West Highway, Silver Spring, MD 20910, telephoning the contact listed below (see
The Maritime Administration (MARAD) and U.S. Coast Guard (USCG) Final Environmental Impact Statement (Final EIS) on the Neptune LNG Deepwater Port License Application is available for viewing at
Candace Nachman, Office of Protected Resources, NMFS, (301) 713 2289, ext 156.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45 day time limit for NMFS review of an application followed by a 30 day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:
any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [“Level A harassment”]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [“Level B harassment”].
NMFS received an application on December 14, 2009, from Neptune for the taking, by harassment, of marine mammals incidental to port commissioning and operations, including maintenance and repair activities, at its Neptune Deepwater Port (Port) facility in Massachusetts Bay. NMFS reviewed Neptune's application and identified a number of issues requiring further clarification. After addressing comments from NMFS, Neptune modified its application and submitted a revised application on March 11, 2010.
NMFS issued a 1-year IHA to Neptune in June 2008 for the construction of the Port (73 FR 33400, June 12, 2008), which expired on June 30, 2009. NMFS issued a second 1-year IHA to Neptune for the completion of construction and beginning of Port operations on June 26, 2009 (74 FR 31926, July 6, 2009). This IHA expired on June 30, 2010.
During the period of this third IHA, Neptune intends to commission its second shuttle and regasification vessel (SRV) and conduct limited port operations. There is also a chance that some maintenance and repairs may need to be conducted on the Port facility. The Neptune Port is located approximately 22 mi (35 km) northeast of Boston, Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. The purpose of the Port is the importation of liquefied natural gas (LNG) into the New England region. Take of marine mammals may occur during port operations from thruster use during maneuvering of the SRVs while docking and undocking, occasional weathervaning (turning of a vessel at anchor from one direction to another under the influence of wind or currents) at the Port, and during thruster use of dynamic positioning (DP) maintenance vessels should a major repair be necessary. Neptune has requested an authorization to take 12 marine mammal species by Level B harassment. They are: North Atlantic right whale; humpback whale; fin whale; sei whale; minke whale; long-finned pilot whale; Atlantic white-sided dolphin; harbor porpoise; common dolphin; Risso's dolphin; bottlenose dolphin; and harbor seal. In the 2009 IHA, NMFS also authorized take of killer whales and gray seals. NMFS has determined that it would be appropriate to authorize take, by Level B harassment only, of these
On March 23, 2007, Neptune received a license to own, construct, and operate a deepwater port from MARAD. The Port, which is located in Massachusetts Bay, consists of a submerged buoy system to dock specifically designed LNG carriers approximately 22 mi (35 km) northeast of Boston, Massachusetts, in Federal waters approximately 260 ft (79 m) in depth. The two buoys are separated by a distance of approximately 2.1 mi (3.4 km). The locations of the Neptune Port and the associated pipeline are shown in Figure 2-1 in Neptune's application (see
Neptune will be capable of mooring LNG SRVs with a capacity of approximately 140,000 cubic meters (m3). Up to two SRVs will temporarily moor at the Port by means of a submerged unloading buoy system. Two separate buoys will allow natural gas to be delivered in a continuous flow, without interruption, by having a brief overlap between arriving and departing SRVs. The annual average throughput capacity will be around 500 million standard cubic feet per day (mmscfd) with an initial throughput of 400 mmscfd, and a peak capacity of approximately 750 mmscfd.
The SRVs will be equipped to store, transport, and vaporize LNG and to odorize, meter and send out natural gas by means of two 16-in (40.6-cm) flexible risers and one 24-in (61-cm) subsea flowline. These risers and flowline will lead to a 24-in (61-cm) gas transmission pipeline connecting the deepwater port to the existing 30-in (76.2-cm) Algonquin Hubline
A notice of receipt of Neptune's application and NMFS' proposal to issue an IHA to Neptune published in the
NMFS' January 2007 Biological Opinion considered impacts from port and pipeline construction and operation on sperm and blue whales in addition to the other cetacean species cited in the MMC's comment. The 2007 opinion concluded that those activities were not likely to adversely affect sperm and blue whales. Because no additional effects to these two species are anticipated from the repair and maintenance activities and no effects beyond those analyzed in 2007 for operations are likely, sperm and blue whales were not further analyzed in the 2010 Biological Opinion.
Massachusetts Bay (as well as the entire Atlantic Ocean) hosts a diverse assemblage of marine mammals, including: North Atlantic right whale; blue whale; fin whale; sei whale; minke whale; humpback whale; killer whale; long-finned pilot whale; sperm whale; Atlantic white-beaked dolphin; Atlantic white-sided dolphin; bottlenose dolphin; common dolphin; harbor porpoise; Risso's dolphin; striped dolphin; gray seal; harbor seal; harp seal; and hooded seal. Table 3-1 in Neptune's application outlines the marine mammal species that occur in Massachusetts Bay and the likelihood of occurrence of each species. Of the species listed here, the North Atlantic right, blue, fin, sei, humpback, and sperm whales are all listed as endangered under the ESA and as depleted under the MMPA. The northern coastal stock of bottlenose dolphins is considered depleted under the MMPA. Certain stocks or populations of killer whales are listed as endangered under the ESA or depleted under the MMPA; however, none of those stocks or populations occurs in the proposed activity area.
Of these species, 14 are expected to occur in the area of Neptune's proposed operations. These species include: the North Atlantic right, humpback, fin, sei, minke, killer, and long-finned pilot whale; Atlantic white-sided, common, Risso's, and bottlenose dolphins; harbor porpoise; and harbor and gray seals. The Notice of Proposed IHA (75 FR 24906, May 6, 2010) provided a description of certain marine mammal species that are considered rare in the project area.
Information on those species that may be impacted by this activity is provided in Neptune's application and sections 3.2.3 and 3.2.5 in the MARAD/USCG Final EIS on the Neptune LNG proposal (see
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data, Southall
• Low-frequency cetaceans (13 species of mysticetes): functional hearing is estimated to occur between approximately 7 Hz and 22 kHz;
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;
• High-frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): functional hearing is estimated to occur between approximately 200 Hz and 180 kHz; and
• Pinnipeds in Water: functional hearing is estimated to occur between approximately 75 Hz and 75 kHz, with the greatest sensitivity between approximately 700 Hz and 20 kHz.
As mentioned previously in this document, 14 marine mammal species (12 cetacean and two pinniped species) are likely to occur in the Neptune Port area. Of the 12 cetacean species likely to occur in Neptune's project area, five are classified as low-frequency cetaceans (i.e., North Atlantic right, humpback, fin, minke, and sei whales), six are classified as mid-frequency cetaceans (i.e., killer and pilot whales and bottlenose, common, Risso's, and Atlantic white-sided dolphins), and one is classified as a high-frequency cetacean (i.e., harbor porpoise) (Southall
Potential effects of Neptune's proposed port operations and maintenance/repair activities would most likely be acoustic in nature. LNG port operations and maintenance/repair activities introduce sound into the marine environment. Potential acoustic effects on marine mammals relate to sound produced by thrusters during maneuvering of the SRVs while docking and undocking, occasional weathervaning at the port, and during thruster use of DP maintenance vessels should a major repair be necessary. The potential effects of sound from the proposed activities associated with the Neptune Port might include one or more of the following: tolerance; masking of natural sounds; behavioral disturbance; non-auditory physical effects; and, at least in theory, temporary or permanent hearing impairment (Richardson
(1) The noise may be too weak to be heard at the location of the animal (i.e., lower than the prevailing ambient noise level, the hearing threshold of the animal at relevant frequencies, or both);
(2) The noise may be audible but not strong enough to elicit any overt behavioral response;
(3) The noise may elicit reactions of variable conspicuousness and variable relevance to the well being of the marine mammal; these can range from temporary alert responses to active avoidance reactions such as vacating an area at least until the noise event ceases but potentially for longer periods of time;
(4) Upon repeated exposure, a marine mammal may exhibit diminishing responsiveness (habituation), or disturbance effects may persist; the latter is most likely with sounds that are highly variable in characteristics, infrequent, and unpredictable in occurrence, and associated with situations that a marine mammal perceives as a threat;
(5) Any anthropogenic noise that is strong enough to be heard has the potential to reduce (mask) the ability of a marine mammal to hear natural sounds at similar frequencies, including calls from conspecifics, and underwater environmental sounds such as surf noise;
(6) If mammals remain in an area because it is important for feeding, breeding, or some other biologically important purpose even though there is chronic exposure to noise, it is possible that there could be noise-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and
(7) Very strong sounds have the potential to cause a temporary or permanent reduction in hearing sensitivity. In terrestrial mammals, and presumably marine mammals, received sound levels must far exceed the animal's hearing threshold for there to be any temporary threshold shift (TTS) in its hearing ability. For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound. Received sound levels must be even higher for there to be risk of permanent hearing impairment. In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration and other functions. This trauma may include minor to severe hemorrhage.
The Notice of Proposed IHA (75 FR 24906, May 6, 2010) included a discussion of the effects of anthropogenic sound on mysticetes, odontocetes, and pinnipeds, including tolerance, masking, disturbance, and hearing impairment and other physiological effects. That discussion did not take into consideration the monitoring and mitigation measures proposed by Neptune and NMFS. Based on the discussion contained in the proposed IHA notice, it is highly unlikely that marine mammals could receive sounds strong enough (and over a sufficient duration) to cause permanent threshold shift (or even TTS) during port operations and maintenance/repair activities. The modeled broadband source level for 100 percent thruster use during port operations is 180 dB re 1 μPa at 1 m (rms). This does not reach the threshold of 190 dB currently used for pinnipeds. The threshold for cetaceans is 180 dB; therefore, cetaceans would have to be immediately adjacent to the vessel for even the possibility of hearing impairment to occur. Based on this and mitigation measures included in the IHA (described later in this document in the “Mitigation” section), only Level B behavioral harassment is anticipated occur, and it is highly unlikely that any type of hearing impairment would occur as a result of Neptune's activities.
The primary potential impacts to marine mammals and other marine
NMFS determined that repair activities would not create long-term habitat changes, and marine mammals displaced by the disturbance to the seafloor are expected to return soon after repair activities cease. Marine mammals also could be indirectly affected if benthic prey species were displaced or destroyed by repair activities. However, affected species are expected to recover soon after the completion of repairs and will represent only a small portion of food available to marine mammals in the area. In conclusion, NMFS has determined that Neptune's port operations and maintenance/repair activities are not expected to have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or on the food sources that they utilize.
In order to issue an incidental take authorization (ITA) under Sections 101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).
Neptune submitted a “Marine Mammal Detection, Monitoring, and Response Plan for the Operations Phase” (the Plan) as part of its MMPA application (Appendix D of the application; see
(A) During repairs, if a marine mammal is detected within 0.5 mi (0.8 km) of the repair vessel, the vessel superintendent or on-deck supervisor will be notified immediately. The vessel's crew will be put on a heightened state of alert. The marine mammal will be monitored constantly to determine if it is moving toward the repair area.
(B) Repair vessels will cease any movement in the area if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) from the operating repair vessel. Repair vessels will cease any movement in the construction area if a right whale is sighted within or approaching to a distance of 500 yd (457 m) from the operating vessel. Vessels transiting the repair area, such as pipe haul barge tugs, will also be required to maintain these separation distances.
(C) Repair vessels will cease all sound emitting activities if a marine mammal other than a right whale is sighted within or approaching to a distance of 100 yd (91 m) or if a right whale is sighted within or approaching to a distance of 500 yd (457 m), from the operating repair vessel. The back-calculated source level, based on the most conservative cylindrical model of acoustic energy spreading, is estimated to be 139 dB re 1 μPa.
(D) Repair activities may resume after the marine mammal is positively reconfirmed outside the established zones (either 500 yd (457 m) or 100 yd (91 m), depending upon species).
(E) While under way, all repair vessels will remain 500 yd (457 m) away from right whales and 100 yd (91 m) away from all other marine mammals to the extent physically feasible given navigational constraints.
(F) All repair vessels 300 gross tons or greater will maintain a speed of 10 knots (18.5 km/hr) or less. Vessels less than 300 gross tons carrying supplies or crew between the shore and the repair site will contact the Mandatory Ship Reporting System (MSRS), the USCG, or the marine mammal observers (MMOs) at the repair site before leaving shore for reports of recent right whale sightings or active Dynamic Management Areas (DMAs) and, consistent with navigation safety, restrict speeds to 10 knots (18.5 km/hr) or less within 5 mi (8 km) of any recent sighting location and within any existing DMA.
(G) Vessels transiting through the Cape Cod Canal and Cape Cod Bay (CCB) between January 1 and May 15 will reduce speeds to 10 knots (18.5 km/hr) or less, follow the recommended routes charted by NOAA to reduce interactions between right whales and shipping traffic, and avoid aggregations of right whales in the eastern portion of CCB.
If unplanned/emergency repair activities cannot be conducted between May 1 and November 30, Neptune is required to implement the following additional mitigation measures:
(A) If on-board MMOs do not have at least 0.5-mi (0.8-km) visibility, they shall call for a shutdown of repair activities. If dive operations are in progress, then they shall be halted and brought on board until visibility is adequate to see a 0.5-mi (0.8-km) range. At the time of shutdown, the use of thrusters must be minimized. If there are potential safety problems due to the shutdown, the captain will decide what operations can safely be shut down and will document such activities.
(B) Prior to leaving the dock to begin transit, the barge will contact one of the MMOs on watch to receive an update of sightings within the visual observation area. If the MMO has observed a North Atlantic right whale within 30 minutes of the transit start, the vessel will hold for 30 minutes and again get a clearance to leave from the MMOs on board. MMOs will assess whale activity and visual observation ability at the time of the transit request to clear the barge for release.
(C) A half-day training course will be provided to designated crew members assigned to the transit barges and other support vessels. These designated crew members will be required to keep watch on the bridge and immediately notify the navigator of any whale sightings. All watch crew will sign into a bridge log book upon start and end of watch. Transit route, destination, sea conditions, and any protected species sightings/mitigation actions during
(D) The material barges and tugs used for repair work shall transit from the operations dock to the work sites during daylight hours, when possible, provided the safety of the vessels is not compromised. Should transit at night be required, the maximum speed of the tug will be 5 knots (9.3 km/hr).
(E) Consistent with navigation safety, all repair vessels must maintain a speed of 10 knots (18.5 km/hr) or less during daylight hours. All vessels will operate at 5 knots or less at all times within 3.1 mi (5 km) of the repair area.
Repair vessels and SRVs will transit at 10 knots (18.5 km/hr) or less in the following seasons and areas, which either correspond to or are more restrictive than the times and areas in NMFS' final rule (73 FR 60173, October 10, 2008) to implement speed restrictions to reduce the likelihood and severity of ship strikes of right whales:
• CCB SMA from January 1 through May 15, which includes all waters in CCB, extending to all shorelines of the Bay, with a northern boundary of 42° 12' N. latitude;
• Off Race Point SMA year round, which is bounded by straight lines connecting the following coordinates in the order stated: 42° 30' N. 69° 45' W.; thence to 42° 30' N. 70° 30' W.; thence to 42° 12' N. 70° 30' W.; thence to 42° 12' N. 70° 12' W.; thence to 42° 04' 56.5'' N. 70° 12' W.; thence along mean high water line and inshore limits of COLREGS limit to a latitude of 41° 40' N.; thence due east to 41° 41' N. 69° 45' W.; thence back to starting point; and
• Great South Channel (GSC) SMA from April 1 through July 31, which is bounded by straight lines connecting the following coordinates in the order stated:
42° 30' N. 69° 45' W.
41° 40' N. 69° 45' W.
41° 00' N. 69° 05' W.
42° 09' N. 67° 08' 24'' W.
42° 30' N. 67° 27' W.
42° 30' N. 69° 45' W.
(A) In approaching and departing from the Neptune Port, SRVs shall use the Boston Traffic Separation Scheme (TSS) starting and ending at the entrance to the GSC. Upon entering the TSS, the SRV shall go into a “heightened awareness” mode of operation, which is outlined in detail in the Plan (see Neptune's application).
(B) In the event that a whale is visually observed within 0.6 mi (1 km) of the Port or a confirmed acoustic detection is reported on either of the two auto-detection buoys (ABs; more information on the acoustic devices is contained in the “Monitoring and Reporting” section later in this document) closest to the Port, departing SRVs shall delay their departure from the Port, unless extraordinary circumstances, defined in the Plan, require that the departure is not delayed. The departure delay shall continue until either the observed whale has been visually (during daylight hours) confirmed as more than 0.6 mi (1 km) from the Port or 30 minutes have passed without another confirmed detection either acoustically within the acoustic detection range of the two ABs closest to the Port or visually within 0.6 mi (1 km) from Neptune.
(C) SRVs that are approaching or departing from the Port and are within the Area to be Avoided (ATBA) surrounding Neptune shall remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yards (91 meters) away from all other visually detected whales unless extraordinary circumstances, as defined in Section 1.2 of the Plan in Neptune's application, require that the vessel stay its course. The ATBA is defined in 33 CFR 150.940. It is the largest area of the Port marked on nautical charts and it is enforceable by the USCG in accordance with the 150.900 regulations. The Vessel Master shall designate at least one lookout to be exclusively and continuously monitoring for the presence of marine mammals at all times while the SRV is approaching or departing Neptune.
(D) Neptune will ensure that other vessels providing support to Neptune operations during regasification activities that are approaching or departing from the Port and are within the ATBA shall be operated so as to remain at least 0.6 mi (1 km) away from any visually detected right whales and at least 100 yd (91 m) from all other visually detected whales.
In addition to the mitigation measures in Neptune's IHA application, NMFS has included the following measures in the IHA in order to ensure the least practicable impact on the affected species or stocks:
(1) Neptune must immediately suspend any repair and maintenance or operations activities if a dead or injured marine mammal is found in the vicinity of the project area, and the death or injury of the animal could be attributable to the LNG facility activities. Neptune must contact NMFS and the Northeast Stranding and Disentanglement Program. Activities will not resume until review and approval has been given by NMFS.
(2) MMOs will direct a moving vessel to slow to idle if a baleen whale is seen less than 0.6 mi (1 km) from the vessel.
(3) Use of lights during repair or maintenance activities shall be limited to areas where work is actually occurring, and all other lights must be extinguished. Lights must be downshielded to illuminate the deck and shall not intentionally illuminate surrounding waters, so as not to attract whales or their prey to the area.
NMFS has carefully evaluated the applicant's mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's measures, as well as other measures considered by NMFS, NMFS has determined that the required mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must, where applicable, set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species
Neptune proposed both visual and acoustic monitoring programs in the Plan contained in the IHA application. Summaries of those plans, as well as the proposed reporting, are contained next. The monitoring and reporting programs contained in the Plan are included in the IHA.
Neptune LNG will deploy and maintain a passive acoustic detection network along a portion of the TSS and in the vicinity of Neptune. This network will consisting of autonomous recording units (ARUs) and near-real-time ABs. To develop, implement, collect, and analyze the acoustic data obtained from deployment of the ARUs and ABs, as well as to prepare reports and maintain the passive acoustic detection network, Neptune LNG has engaged the Cornell University Bioacoustic Research Program (BRP) in Ithaca, New York, and the Woods Hole Oceanographic Institution (WHOI) in Woods Hole, Massachusetts.
During June 2008, an array of 19 passive seafloor ARUs was deployed by BRP for Neptune. The layout of the array centered on the terminal site and was used to monitor the noise environment in Massachusetts Bay in the vicinity of Neptune during construction of the port and associated pipeline lateral. The ARUs were not designed to provide real-time or near-real-time information about vocalizing whales. Rather archival noise data collected from the ARU array were used for the purpose of understanding the seasonal occurrences and overall distributions of whales (primarily North Atlantic right whales) within approximately 10 nm (18.5 km) of the Neptune Port. Neptune LNG will maintain these ARUs in the same configuration for a period of five years during full operation of Neptune in order to monitor the actual acoustic output of port operations and to alert NOAA to any unanticipated adverse effects of port operations, such as large scale abandonment by marine mammals of the area. To further assist in evaluations of the Neptune's acoustic output, source levels associated with DP of SRVs at the buoys will be estimated using empirical measurements collected from the passive detection network.
In addition to the ARUs, Neptune LNG has deployed 10 ABs within the Separation Zone of the TSS for the operational life of the Port. The purpose of the AB array is to detect the presence of vocalizing North Atlantic right whales. Each AB has an average detection range of 5 nm (9.3 km) of the AB, although detection ranges will vary based on ambient underwater conditions. The AB system will be the primary detection mechanism that alerts the SRV Master to the occurrence of right whales in the TSS and triggers heightened SRV awareness. The configurations of the ARU array and AB network (see Figure 3 in the Plan in Neptune's application) were based upon the configurations developed and recommended by NOAA personnel.
Each AB deployed in the TSS will continuously screen the low-frequency acoustic environment (less than 1,000 Hz) for right whale contact calls occurring within an approximately
5-nm (9.3-km) radius from each buoy (the ABs' detection range) and rank detections on a scale from 1 to 10. Each AB shall transmit all detection data for detections of rank greater than or equal to 6 via Iridium satellite link to the BRP server website every 20 minutes. This 20-minute transmission schedule was determined by consideration of a combination of factors including the tendency of right whale calls to occur in clusters (leading to a sampling logic of listening for other calls rather than transmitting immediately upon detection of a possible call) and the amount of battery power required to complete a satellite transmission. Additional details on the protocol can be found in Neptune's application.
Additionally, Neptune shall provide empirically measured source level data for all sources of noise associated with LNG port maintenance and repair activities. Measurements should be carefully coordinated with noise-producing activities and should be collected from the passive acoustic monitoring network.
During maintenance- and repair-related activities, Neptune LNG shall employ two qualified MMOs on each vessel that has a DP system. All MMOs must receive training and be approved in advance by NOAA after a review of their qualifications. Qualifications for these MMOs shall include direct field experience on a marine mammal observation vessel and/or aerial surveys in the Atlantic Ocean/Gulf of Mexico. The MMOs (one primary and one secondary) are responsible for visually locating marine mammals at the ocean's surface and, to the extent possible, identifying the species. The primary MMO shall act as the identification specialist, and the secondary MMO will serve as data recorder and will assist with identification. Both MMOs shall have responsibility for monitoring for the presence of marine mammals.
The MMOs shall monitor the area where maintenance and repair work is conducted beginning at daybreak using the naked eye, hand-held binoculars, and/or power binoculars (e.g, Big Eyes). The MMOs shall scan the ocean surface by eye for a minimum of 40 minutes every hour. All sightings must be recorded on marine mammal field sighting logs.
While an SRV is navigating within the designated TSS, three people have lookout duties on or near the bridge of the ship including the SRV Master, the Officer-of-the-Watch, and the Helmsman on watch. In addition to standard watch procedures, while the SRV is within the ATBA and/or while actively engaging in the use of thrusters an additional lookout shall be designated to exclusively and continuously monitor for marine mammals. Once the SRV is moored and regasification activities have begun, the vessel is no longer considered in “heightened awareness” status. However, when regasification activities conclude and the SRV prepares to depart from Neptune, the Master shall once again ensure that the responsibilities as defined in the Plan are carried out. All sightings of marine mammals by the designated lookout, individuals posted to navigational lookout duties, and/or any other crew member while the SRV is within the TSS, in transit to the ATBA, within the ATBA, and/or when actively engaging in the use of thrusters shall be immediately reported to the Officer-of-the-Watch who shall then alert the Master.
Since the Neptune Port is within the Mandatory Ship Reporting Area (MSRA), all SRVs transiting to and from Neptune shall report their activities to the mandatory reporting section of the USCG to remain apprised of North Atlantic right whale movements within the area. All vessels entering and exiting the MSRA shall report their activities to WHALESNORTH. Vessel operators shall contact the USCG by standard procedures promulgated through the Notice to Mariner system.
For any repair work associated with the pipeline lateral or other port components, Neptune LNG shall notify the appropriate NOAA personnel as soon as practicable after it is determined that repair work must be conducted. During maintenance and repair of the pipeline lateral or other port components, weekly status reports must be provided to NOAA. The weekly
• The location, time, and nature of the pipeline lateral repair activities;
• Whether the DP system was operated and, if so, the number of thrusters used and the time and duration of DP operation;
• Marine mammals observed in the area (number, species, age group, and initial behavior);
• The distance of observed marine mammals from the repair activities;
• Observed marine mammal behaviors during the sighting;
• Whether any mitigation measures were implemented;
• Weather conditions (sea state, wind speed, wind direction, ambient temperature, precipitation, and percent cloud cover, etc.);
• Condition of the marine mammal observation (visibility and glare); and
• Details of passive acoustic detections and any action taken in response to those detections.
For minor repairs and maintenance activities, the following protocols will be followed:
• All vessel crew members will be trained in marine mammal identification and avoidance procedures;
• Repair vessels will notify designated NOAA personnel when and where the repair/maintenance work is to take place along with a tentative schedule and description of the work;
• Vessel crews will record/document any marine mammal sightings during the work period; and
• At the conclusion of the repair/maintenance work, a report will be delivered to designated NOAA personnel describing any marine mammal sightings, the type of work taking place when the sighting occurred, and any avoidance actions taken during the repair/maintenance work.
During all phases of project repair/maintenance activities and operation, sightings of any injured or dead marine mammals will be reported immediately to the USCG and NMFS, regardless of whether the injury or death is caused by project activities. Sightings of injured or dead marine mammals not associated with project activities can be reported to the USCG on VHF Channel 16 or to NMFS Stranding and Entanglement Hotline. In addition, if the injury or death was caused by a project vessel (e.g., SRV, support vessel, or construction vessel), USCG must be notified immediately, and a full report must be provided to NMFS, Northeast Regional Office. The report must include the following information: (1) the time, date, and location (latitude/longitude) of the incident; (2) the name and type of vessel involved; (3) the vessel's speed during the incident; (4) a description of the incident; (5) water depth; (6) environmental conditions (e.g., wind speed and direction, sea state, cloud cover, and visibility); (7) the species identification or description of the animal; (8) the fate of the animal; and (9) photographs or video footage of the animal (if equipment is available).
An annual report on marine mammal monitoring and mitigation will be submitted to NMFS Office of Protected Resources and NMFS Northeast Regional Office within 90 days after the expiration of the IHA. The weekly reports and the annual report should include data collected for each distinct marine mammal species observed in the project area in the Massachusetts Bay during the period of LNG facility operations and repair/maintenance activities. Description of marine mammal behavior, overall numbers of individuals observed, frequency of observation, and any behavioral changes and the context of the changes relative to operation and repair/maintenance activities shall also be included in the annual report. Additional information that will be recorded during operations and repair/maintenance activities and contained in the reports include: date and time of marine mammal detections (visually or acoustically), weather conditions, species identification, approximate distance from the source, activity of the vessel when a marine mammal is sighted, and whether thrusters were in use and, if so, how many at the time of the sighting.
Throughout the construction period, Neptune submitted weekly reports on marine mammal sightings in the area. While it is difficult to draw biological conclusions from these reports, NMFS can make some general conclusions. Data gathered by MMOs is generally useful to indicate the presence or absence of marine mammals (often to a species level) within the safety zones (and sometimes without) and to document the implementation of mitigation measures. Though it is by no means conclusory, it is worth noting that no instances of obvious behavioral disturbance as a result of Neptune's activities were observed by the MMOs. Of course, these observations only cover the animals that were at the surface and within the distance that the MMOs could see. Based on the number of sightings contained in the weekly reports, it appears that NMFS' estimated take levels are accurate. As operation of the Port has not yet commenced, there are no reports describing the results of the visual monitoring program for this phase of the project. However, it is anticipated that visual observations will be able to continue as they were during construction.
As described previously in this document, Neptune was required to maintain an acoustic array to monitor calling North Atlantic right whales (humpback and fin whale calls were also able to be detected). Cornell BRP analyzed the data and submitted a report covering the initial construction phase of the project, which occurred in 2008. While acoustic data can only be collected if the animals are actively calling, the report indicates that humpback and fin whales were heard calling on at least some of the ARUs on all construction days, and right whale calls were heard only 28 percent of the time during active construction days. The passive acoustic arrays will remain deployed during the time frame of this IHA in order to obtain information during the operational phase of the Port facility.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Only take by Level B harassment is anticipated as a result of Neptune's operational and repair/maintenance activities. Anticipated take of marine mammals is associated with thruster sound during maneuvering of the SRVs while docking and undocking, occasional weathervaning at the Port, and during thruster use of DP maintenance vessels should a major repair be necessary. The regasification process itself is an activity that does not rise to the level of taking, as the modeled source level for this activity is 110 dB (rms). Certain species may have a behavioral reaction to the sound emitted during the activities. Hearing impairment is not anticipated. Additionally, vessel strikes are not anticipated, especially because of the speed restriction measures that are
For continuous sounds, such as those produced by Neptune's proposed activities, NMFS uses a received level of 120-dB (rms) to indicate the onset of Level B harassment. The basis for Neptune's “take” estimate is the number of marine mammals that potentially could be exposed to sound levels in excess of 120 dB. This has been determined by applying the modeled zone of influence (ZOI; e.g., the area ensonified by the 120-dB contour) to the seasonal use (density) of the area by marine mammals and correcting for seasonal duration of sound-generating activities and estimated duration of individual activities when the maximum sound-generating activities are intermittent to occasional. Nearly all of the required information is readily available in the MARAD/USCG Final EIS, with the exception of marine mammal density estimates for the project area. In the case of data gaps, a conservative approach was used to ensure that the potential number of takes is not underestimated.
The Notice of Proposed IHA (75 FR 24906, May 6, 2010) included an in-depth discussion of the methodology used by NMFS to estimate take by harassment incidental to operation and repair/maintenance activities at the Neptune Port facility. A summary is provided next.
Results of sound modeling tests indicate that the 120-dB radius from thruster use by the SRV is estimated to be 1.6 nm (3 km), creating a maximum ZOI of 8.5 nm
NMFS used the data on cetacean distribution within Massachusetts Bay, such as those published by the National Centers for Coastal Ocean Science (NCCOS, 2006), to determine potential takes of marine mammals in the vicinity of the project area. Sighting data for the following species are contained in the report: North Atlantic right, fin, humpback, minke, pilot, and sei whales and Atlantic white-sided dolphins. The NCCOS study used cetacean sightings from two sources: (1) the North Atlantic Right Whale Consortium (NARWC) sightings database held at the University of Rhode Island (Kenney, 2001); and (2) the Manomet Bird Observatory (MBO) database, held at the NMFS Northeast Fisheries Science Center (NEFSC). The NCCOS study then combined these two data sets by extracting cetacean sighting records, updating database field names to match the NARWC database, creating geometry to represent survey tracklines and applying a set of data selection criteria designed to minimize uncertainty and bias in the data used.
For a detailed description and calculation of the cetacean abundance data and sightings-per-unit-effort (SPUE), refer to the NCCOS study (NCCOS, 2006). SPUE for all four seasons were analyzed, and the highest value SPUE for the season with the highest abundance of each species was used to determine relative abundance. Based on the data, the relative abundance of North Atlantic right, fin, humpback, minke, sei, and pilot whales and Atlantic white-sided dolphins, as calculated by SPUE in number of animals per square kilometer, is 0.0082, 0.0097, 0.0265, 0.0059, 0.0084, 0.0407, and 0.1314 n/km, respectively. Table 1 in this document outlines the density, abundance, take estimates, and percent of population for the 14 species for which NMFS has authorized Level B harassment.
In calculating the area density of these species from these linear density data, NMFS used 0.4 km (0.25 mi), which is a quarter the distance of the radius for visual monitoring, as a conservative hypothetical strip width (W). Thus the area density (D) of these species in the project area can be obtained by the following formula:
D = SPUE/2W.
Based on the calculation, the estimated take numbers by Level B harassment for the 1-year IHA period during operation of the SRV for North Atlantic right, fin, humpback, minke, sei, and pilot whales and Atlantic white-sided dolphins, within the 120-dB ZOI of the LNG Port facility area of approximately 8.5 nm
Based on the same calculation method described above for Port operations (but using the 120-dB ZOI of approximately 52 km
The total estimated take of these species as a result of both operations and repair and maintenance activities of the Neptune Port facility between July 12, 2010, through July 11, 2011, is: 33 North Atlantic right whales; 40 fin whales; 108 humpback whales; 24 minke whales; 17 sei whales; 166 long-finned pilot whales; and 536 Atlantic white-sided dolphins. These numbers represent a maximum of 9.6, 1.8, 12.8, 0.7, 4.4, 0.5, and 0.8 percent of the populations for these species or stocks in the western North Atlantic, respectively. It is likely that individual animals will be “taken” by harassment multiple times (because certain individuals may occur in the area more than once while other individuals of the population or stock may not enter the proposed project area). Additionally, the highest value SPUE for the season with the highest abundance of each species was used to determine relative abundance. Moreover, it is not expected that Neptune will have 50 SRV transits and LNG deliveries in the first year of operations. Therefore, these percentages are the upper boundary of the animal population that could be affected. Thus, the actual number of individual animals being exposed or taken is expected to be far less.
In addition, bottlenose dolphins, common dolphins, Risso's dolphins, killer whales, harbor porpoises, harbor seals, and gray seals could also be taken by Level B harassment as a result of the deepwater LNG port project. Because these species are less likely to occur in the area, and there are no density estimates specific to this particular area, NMFS based the take estimates on typical group size. Therefore, NMFS estimates (and has authorized) that up to approximately 10 bottlenose dolphins, 20 common dolphins, 20 Risso's dolphins, 20 killer whales, 5 harbor porpoises, 15 harbor seals, and
Because Massachusetts Bay represents only a small fraction of the western North Atlantic basin where these animals occur NMFS has determined that only small numbers of the affected marine mammal species or stocks would be potentially affected by the Neptune LNG deepwater project. The take estimates presented in this section of the document do not take into consideration the mitigation and monitoring measures required by the IHA.
NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) the number of anticipated mortalities; (2) the number and nature of anticipated injuries; (3) the number, nature, intensity, and duration of Level B harassment; and (4) the context in which the takes occur.
No injuries or mortalities are anticipated to occur as a result of Neptune's port operation and maintenance and repair activities, and none have been authorized by NMFS. Additionally, animals in the area are not anticipated to incur any hearing impairment (i.e., TTS or PTS), as the modeling results for the SRV indicate a source level of 180 dB (rms).
While some of the species occur in the project area year-round, some species only occur in the area during certain seasons. Sei whales are only anticipated in the area during the spring. Therefore, if shipments and/or maintenance/repair activities occur in other seasons, the likelihood of sei whales being affected is quite low. Additionally, any repairs that can be scheduled in advance will be scheduled to avoid the peak time that North Atlantic right whales occur in the area, which usually is during the early spring. North Atlantic right, humpback, and minke whales are not expected in the project area in the winter. During the winter, a large portion of the North Atlantic right whale population occurs in the southeastern U.S. calving grounds (i.e., South Carolina, Georgia, and northern Florida). The fact that certain activities will occur during times when certain species are not commonly found in the area will help reduce the amount of Level B harassment for these species.
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Of the 14 marine mammal species likely to occur in the area, four are listed as endangered under the ESA: North Atlantic right, humpback, fin, and sei whales. All of these species, as well as the northern coastal stock of bottlenose dolphin, are also considered depleted under the MMPA. The affected humpback and North Atlantic right whale populations have been increasing in recent years. However, there is insufficient data to determine population trends for the other depleted species in the project area. There is currently no designated critical habitat or known reproductive areas for any of these species in or near the project area. However, there are several well known North Atlantic right whale feeding grounds in the CCB and GSC. As mentioned previously, to the greatest extent practicable, all maintenance/repair work will be scheduled during the May 1 to November 30 time frame to avoid peak right whale feeding in these areas, which occur close to the Neptune Port. No mortality or injury is expected to occur and due to the nature, degree, and context of the Level B harassment anticipated, the activity is not expected to impact rates of recruitment or survival.
The population estimates for the species that may be taken by harassment from the most recent U.S. Atlantic SAR were provided earlier in this document (see Table 1). From the most conservative estimates of both marine mammal densities in the project area and the size of the 120-dB ZOI, the maximum calculated number of individual marine mammals for each species that could potentially be harassed annually is small relative to the overall population sizes (12.8 percent for humpback whales and 9.6 percent for North Atlantic right whales and no more than 4.4 percent of any other species).
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that operation, including repair and maintenance activities, of the Neptune Port will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from Neptune's activities will have a negligible impact on the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action.
On January 12, 2007, NMFS concluded consultation with MARAD and USCG under section 7 of the ESA on the proposed construction and operation of the Neptune LNG facility and issued a Biological Opinion. The finding of that consultation was that the construction and operation of the Neptune LNG terminal may adversely affect, but is not likely to jeopardize, the continued existence of North Atlantic right, humpback, and fin whales, and is not likely to adversely affect sperm, sei, or blue whales and Kemp's ridley, loggerhead, green, or leatherback sea turtles.
On March 2, 2010, MARAD and USCG sent a letter to NMFS requesting reinitiation of the section 7 consultation. MARAD and USCG determined that certain routine planned operations and maintenance activities, inspections, surveys, and unplanned repair work on the Neptune Deepwater Port pipelines and flowlines, as well as any other Neptune Deepwater Port component (including buoys, risers/umbilicals, mooring systems, and sub-sea manifolds), may constitute a modification not previously considered in the 2007 Biological Opinion. Construction of the Port facility has been completed, and, therefore, is no longer part of the proposed action. Consultation with NMFS' Northeast Regional Office is now complete. The 2010 Biological Opinion contains the following conclusion. After reviewing the best available information on the status of endangered and threatened species under NMFS jurisdiction, the environmental baseline for the action area, the effects of the action, and the cumulative effects in the action area, it is NMFS' biological opinion that the operation of the Neptune LNG deepwater port, including required maintenance and repair work, is likely to adversely affect, but is not likely to jeopardize the continued existence of the North Atlantic right, humpback, fin, and sei whale.
MARAD and the USCG released a Final EIS/Environmental Impact Report (EIR) for the proposed Neptune LNG Deepwater Port (see
NMFS was a cooperating agency in the preparation of the Draft and Final EISs based on a Memorandum of Understanding related to the Licensing of Deepwater Ports entered into by the U.S. Department of Commerce along with 10 other government agencies. On June 3, 2008, NMFS adopted the USCG and MARAD FEIS and issued a separate Record of Decision for issuance of authorizations pursuant to sections 101(a)(5)(A) and (D) of the MMPA for the construction and operation of the Neptune LNG Port facility.
As a result of these determinations, NMFS has issued an IHA to Neptune for the take of marine mammals incidental to port commissioning and operations, including repair and maintenance activities at the Neptune Deepwater Port, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and deletion from the Procurement List.
This action adds products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities and deletes a service from the Procurement List previously furnished by such agency.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Barry S. Lineback, Telephone: (703)
On 5/21/2010 (75 FR 28589-28590) and 5/28/2010 (75 FR 29994-29995), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. The action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
On 5/28/2010 (75 FR 29994-29995), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of a proposed deletion from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the service listed below is no longer suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to provide a service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with a service deleted from the Procurement List.
Accordingly, the following service is deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletion from the Procurement List.
The Committee is proposing to add services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities and to delete a product previously furnished by such agency.
Comments must be received on or before: 8/16/2010.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
This notice is published pursuant to 41 U.S.C 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the services to the Government.
2. If approved, the action will result in authorizing small entities to furnish the services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the services proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following services are proposed for addition to Procurement List for production by the nonprofit agencies listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish a product to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with a product proposed for deletion from the Procurement List.
The following product is proposed for deletion from the Procurement List:
Consumer Product Safety Commission.
Notice of public hearing.
The Consumer Product Safety Commission (“Commission”) will conduct a public hearing to receive views from all interested parties about its agenda and priorities for Commission attention during fiscal year 2012, which begins October 1, 2011. Participation by members of the public is invited. Written comments and oral presentations concerning the Commission's agenda and priorities for fiscal year 2012 will become part of the public record.
The hearing will begin at 10 a.m. on August 11, 2010. Requests to make oral presentations and the written text of any oral presentations must be received by the Office of the Secretary not later than 5 p.m. Eastern Standard Time (EST) on August 4, 2010.
The hearing will be in the Hearing Room, 4th Floor of the Bethesda Towers Building, 4330 East West Highway, Bethesda, Maryland 20814. Requests to make oral presentations and texts of oral presentations should be captioned “Agenda and Priorities FY 2012” and sent by electronic mail (“e-mail”) to
For information about the hearing or to request an opportunity to make an oral presentation, please send an e-mail, call, or write Todd A. Stevenson, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814; e-mail
Section 4(j) of the Consumer Product Safety Act (“CPSA”) (15 U.S.C. 2053(j)) requires the Commission to establish an agenda for action under the laws it administers and, to the extent feasible, to select priorities for action at least 30 days before the beginning of each fiscal year. Section 4(j) of the CPSA provides further that before establishing its agenda and priorities, the Commission conduct a public hearing and provide an opportunity for the submission of comments.
Persons who desire to make oral presentations at the hearing on August 11, 2010, should send an e-mail, call, or write Todd A. Stevenson, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814, e-mail
Persons desiring to make presentations must submit the text of their presentations to the Office of the Secretary not later than 5 p.m. EST on August 4, 2010. The Commission reserves the right to impose further time limitations on all presentations and further restrictions to avoid duplication of presentations. The hearing will begin at 10 a.m. on August 11, 2010, and will conclude the same day.
Council on Environmental Quality.
Notice of Availability, Draft Guidance, “Federal Greenhouse Gas Accounting and Reporting.”
On October 5, 2009, President Obama signed Executive Order (E.O.) 13514—Federal Leadership in Environmental, Energy, and Economic Performance (74 FR 52117) in order to establish an integrated strategy toward sustainability in the Federal Government and to make reduction of greenhouse gas (GHG) emissions a priority for Federal agencies. Among other provisions, E.O. 13514 requires agencies to measure, report, and reduce their GHG emissions.
Section 9(a) of E.O. 13514 directed the Department of Energy's (DOE's) Federal Energy Management Program (FEMP), in coordination with the Environmental Protection Agency (EPA), Department of Defense (DoD), General Services Administration (GSA), Department of the Interior (DOI), Department of Commerce (DOC), and other agencies as appropriate, to develop recommended Federal GHG reporting and accounting procedures. On April 5, 2010, DOE-FEMP submitted the final recommendations on Federal GHG reporting and accounting procedures to the Chair, Council on Environmental Quality (CEQ).
Section 5(a) of E.O. 13514 directed that the Chair of CEQ issue guidance for Federal GHG accounting and reporting. Based on the final recommendations, CEQ has prepared a draft guidance document. CEQ is committed to open government principles and leading by example to ensure that the Federal Government is transparent in its processes for accounting and reporting of Federal GHG emissions.
The Federal Government seeks to continually improve both the quality of data and methods necessary for calculating GHG emissions. Over time, additional requirements, methodologies and procedures will be included in revisions to this document and supporting documents to improve the Federal Government's overall ability to accurately account for and report GHG emissions. In particular, while a detailed approach to accepted and peer-reviewed life cycle methodologies is beyond the scope of the current version of this guidance document, the Federal Government is interested in including such approaches in future versions, and may request comment on inclusion of life cycle methodologies in future versions of this Guidance document.
CEQ provides this draft guidance for public review and comment to ensure accessibility of Federal accounting and reporting requirements and to enhance the quality of public involvement in governmental decisions relating to the environment.
Comments should be submitted on or before August 16, 2010.
The Draft Guidance, “Federal Greenhouse Gas Accounting and Reporting” documents are available at:
Leslie Gillespie-Marthaler, Senior Program Manager, Office of the Environmental Executive (OFEE) at (202) 456-5117.
The Chair, Council on Environmental Quality is required, under section 5(a) of E.O. 13514, to issue guidance for Federal agency greenhouse gas accounting and reporting. Federal agencies are required, under Section 2(c) of E.O. 13514, to establish and report to the CEQ Chair and OMB Director a comprehensive inventory of absolute GHG emissions, including scope 1, scope 2, and specified scope 3 emissions for fiscal year 2010, and thereafter, annually.
The Draft Guidance, “Federal Greenhouse Gas Accounting and Reporting” establishes government-wide requirements for Federal agencies in calculating and reporting GHG emissions associated with agency operations. The Draft Guidance is accompanied by a separate Draft Technical Support Document for Federal GHG Accounting and Reporting (TSD), which provides detailed information on Federal inventory reporting requirements and calculation methodologies. Specifically, CEQ is interested in comments on section/chapter 4 regarding renewable energy. CEQ will seek public comment on this draft guidance for 30 days.
Public comments are requested on or before August 16, 2010.
U.S. Army Corps of Engineers, DoD.
Notice of withdrawal.
On January 22, 2009, the Alaska District, U.S. Army Corps of Engineers (Corps) published a notice of intent to prepare a Draft Environmental Impact Statement (DEIS) to address the potential impacts associated with the construction of the proposed Beluga to Fairbanks (B2F) Alaska natural gas transportation pipeline. On June 24, 2010, the Corps received a request from the Alaska Natural Gas Development Authority discontinuing the EIS development process associated with the proposed B2F pipeline.
Questions can be answered by: Ms. Serena Sweet, Regulatory Division, telephone: (907) 753-2819, toll free in AK: (800) 478-2712,
Department of Education.
The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before September 14, 2010.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before September 14, 2010.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Director, Information Collection Clearance Division, Regulatory Information Management Services, Office of
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Reporting and Recordkeeping Hour Burden:
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
U.S. Election Assistance Commission (EAC).
Notice.
Pursuant to Sections 254(a)(11)(A) and 255(b) of the Help America Vote Act (HAVA), Public Law 107-252, the U.S. Election Assistance Commission (EAC) hereby causes to be published in the
This notice is effective upon publication in the
Bryan Whitener, Telephone 202-566-3100 or 1-866-747-1471 (toll-free).
On March 24, 2004, the U.S. Election Assistance Commission published in the
The amendments to Alaska's state plan include passing legislation to bring the state into compliance with HAVA requirements, developing new staff positions to manage HAVA, updating forms and training materials, and designing improved voter outreach programs. In accordance with HAVA Section 254(a)(12), all the state plans submitted for publication provide information on how the respective state succeeded in carrying out its previous state plan. Alaska confirms that its amendments to the state plan were developed and submitted to public comment in accordance with HAVA Sections 254(a)(11), 255, and 256.
Upon the expiration of thirty days from July 16, 2010, the state is eligible to implement the changes addressed in the plan that is published herein, in accordance with HAVA Section 254(a)(11)(C). EAC wishes to acknowledge the effort that went into revising this state plan and encourages further public comment, in writing, to the state election official listed below.
Ms. Gail Fenumiai, Elections Director, Alaska Division of Elections, P.O. Box 110017, Juneau, Alaska 99811-0017, Phone: (907) 465-4611, Fax: (907) 465-3203.
Thank you for your interest in improving the voting process in America.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's order for the cancellations, voluntarily requested by the registrants and accepted by the Agency, of products containing methyl parathion, pursuant to section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended. This cancellation order follows a April 28, 2010
The cancellations are effective July 16, 2010.
Kelly Ballard, Pesticide Re-evaluation Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-8126; fax number: (703) 305-5290; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2009-0332. Publicly available docket materials are available either in the electronic docket at
This notice announces the cancellations, as requested by registrants, of products registered under section 3 of FIFRA. These registrations are listed in sequence by registration number in Table 1 of this unit.
Table 2 of this unit includes the names and addresses of record for all registrants of the products in Table 1 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed above.
Two comments from the general public were received. The first comment was from the Independent Scientific Research Advocates, and refers to the toxicity issues of organophosphates as a class of chemicals, and does not specifically refer to this cancellation action for methyl parathion. The second comment was from the USA Rice Federation, and notes the concern over the loss of methyl parathion. USA Rice would like EPA to expedite a replacement chemical for methyl parathion, and would support the expedition. The Agency does not believe that the comments submitted during the comment period merit further review or a denial of the requests for voluntary cancellation, or further review for purposes of this order.
Pursuant to FIFRA section 6(f), EPA hereby approves the requested cancellations of methyl parathion registrations identified in Table 1 of Unit II. Accordingly, the Agency hereby orders that the product registrations identified in Table 1 of Unit II. are canceled. The effective date of the cancellations that are subject of this notice is July 16, 2010. Any distribution, sale, or use of existing stocks of the products identified in Table 1 of Unit II. in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit VI. will be a violation of FIFRA.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or
Existing stocks are those stocks of registered pesticide products which are currently in the United States and which were packaged, labeled, and released for shipment prior to the effective date of the action. The existing stocks provision for the products subject to this order is as follows.
As specified in the Memorandum of Agreement, all use, sales and distributions of existing stocks of manufacturing-use products will be prohibited as of December 31, 2012. Registrants are prohibited from selling and distributing end-use products as of December 31, 2012. Persons other than the registrants are permitted to sell or distribute end-use products prior to August 31, 2013. All sales and distributions of end-use products shall be prohibited as of August 31, 2013, except for export consistent with section 17 of FIFRA or for proper disposal. Additionally, all use of existing stocks of the end-use products shall be prohibited as of December 31, 2013.
Environmental protection, Pesticides and pests.
In accordance with Section 309(a) of the Clean Air Act, EPA is required to make its comments on EISs issued by other Federal agencies public. Historically, EPA has met this mandate by publishing weekly notices of availability of EPA comments, which includes a brief summary of EPA's comment letters, in the
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's proposed registration review decision for the pesticide methyl parathion and opens a public comment period on the proposed decision. Registration review is EPA's periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration, that is, that the pesticide can perform its intended function without unreasonable adverse effects on human health or the environment. Through this program, EPA is ensuring that each pesticide's registration is based on current scientific and other knowledge, including its effects on human health and the environment.
Comments must be received on or before September 14, 2010.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2009-0332, by one of the following methods:
•
•
•
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, farm worker, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the chemical review manager listed under
1.
2.
i. Identify the document by docket ID number and other identifying
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
Pursuant to 40 CFR 155.58, this notice announces the availability of EPA's proposed registration review decision for the pesticide, methyl parathion, case number 0153, and opens a 60-day public comment period on the proposed decision. Methyl parathion is a restricted use organophosphate insecticide and acaricide registered for use on alfalfa, almonds, barley, canola/rapeseed, corn (field, pop, and sweet), cotton, grass (forage), oats, onions, potatoes (sweet and white), rice, rye, soybeans, sunflowers, walnuts, and wheat. There are no residential uses.
The registration review docket for a pesticide includes earlier documents related to the registration review of the case. For example, the review opened with the posting of a Summary Document, containing a Preliminary Work Plan, for public comment. A Final Work Plan was posted to the docket following public comment on the initial docket.
As stated in the Methyl Parathion Preliminary Work Plan and Methyl Parathion Final Work Plan for registration review, the Agency had intended to revise the existing risk assessments for methyl parathion. However, after the publication of the Methyl Parathion Final Work Plan, pursuant to section 6(f)(1) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, the Agency announced receipt of requests to voluntarily cancel all methyl parathion product registrations from the registrants of methyl parathion. After a 30-day comment period, the EPA granted the voluntary cancellation requests, establishing effective cancellation dates (FRL-8033-8) for all of the products registered for use in the United States containing the active ingredient, methyl parathion.
Following public comment, the Agency will issue a final registration review decision for products containing methyl parathion.
The registration review program is being conducted under congressionally mandated time frames, and EPA recognizes the need both to make timely decisions and to involve the public. Section 3(g) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, required EPA to establish by regulation procedures for reviewing pesticide registrations, originally with a goal of reviewing each pesticide's registration every 15 years to ensure that a pesticide continues to meet the FIFRA standard for registration. The Agency's final rule to implement this program was issued in August 2006 and became effective in October 2006, and appears at 40 CFR part 155, subpart C. The Pesticide Registration Improvement Act of 2003 (PRIA) was amended and extended in September 2007. FIFRA, as amended by PRIA in 2007, requires EPA to complete registration review decisions by October 1, 2022, for all pesticides registered as of October 1, 2007.
The registration review final rule at 40 CFR 155.58(a) provides for a minimum 60-day public comment period on all proposed registration review decisions. This comment period is intended to provide an opportunity for public input and a mechanism for initiating any necessary amendments to the proposed decision. All comments should be submitted using the methods in
The Agency will carefully consider all comments received by the closing date and will provide a “Response to Comments Memorandum” in the docket. The final registration review decision will explain the effect that any comments had on the decision and provide the Agency's response to significant comments.
Background on the registration review program is provided at:
Section 3(g) of FIFRA and 40 CFR part 155, subpart C, provide authority for this action.
Environmental protection, Administrative practice and procedure, Pesticides and pests, Methyl parathion.
Federal Deposit Insurance Corporation.
Update Listing of Financial Institutions in Liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing. This list (as updated from time to time in the
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning reporting purchases from sources outside the United States.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Submit comments on or before September 14, 2010.
Submit comments identified by Information Collection 9000-0161 by any of the following methods:
•
•
•
Ms. Cecelia Davis, Procurement Analyst, Acquisition Policy Division, Contract Policy Branch, GSA (202) 219-0202 or e-mail
The information on place of manufacture will be used by each Federal agency to prepare the report required for submission to Congress.
Requesters may obtain a copy of the information collection documents from the General Services Administration, Regulatory Secretariat (MVCA), 1800 F Street, NW., Room 4041, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control Number 9000-0161, Reporting Purchases from Sources Outside the United States, in all correspondence.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance (9000-0012).
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Regulatory Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning Termination Settlement Proposal Forms—FAR (Standard Forms 1435 through 1440).
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to
Submit comments on or before September 14, 2010.
Submit comments identified by Information Collection 9000-0012 by any of the following methods:
•
•
•
The termination settlement proposal forms (Standard Forms 1435 through 1440) provide a standardized format for listing essential cost and inventory information needed to support the terminated contractor's negotiation position. Submission of the information assures that a contractor will be fairly reimbursed upon settlement of the terminated contract.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
The new electronic EHR demonstration system was first developed with the intention of having practices applying to participate in Phase 2 of the demonstration use an on-line application form, rather than the currently approved paper application form that was used for Phase 1. However, with the cancellation of Phase 2, the system will not be used to collect new applications at this time. Instead, existing data on Phase 1 applications that was collected through the paper form and manually keyed into a PC based Access database will be transferred to the new system. Practices participating in Phase 1 of the demonstration will be requested to use the new system to provide periodic updates to their practice information. The EHR Demonstration system will enable practices to update critical demonstration information online in a secure, web-enabled environment, thereby facilitating timely and more accurate updates and processing of information. Thus, the EHR Demonstration system (EHRDS) does not reflect a request for new or additional data beyond what practices are already providing to CMS and its contractors. Rather it represents an effort to streamline and improve what has been a more `ad hoc' process for providing the same information.
2.
Medicare health plans provide an NDP to enrollees upon denial, in whole or in part, of payment for a service or item that the enrollee received. This denial may be subject to a series of administrative review levels, involving defined steps and timeframes. The NDP was developed to ensure Medicare enrollees have access to information needed to navigate the Medicare beneficiary appeals process. The NDP meets requirements for Medicare's standard appeals process.
3.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
SAMHSA's Mandatory Guidelines for Federal Workplace Drug Testing Programs will request OMB approval for the Federal Drug Testing Custody and Control Form for Federal agency and federally regulated drug testing programs which must comply with the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs (73 FR 71858) dated November 25, 2008, and for the information provided by laboratories for the National Laboratory Certification Program (NLCP).
The Federal Drug Testing Custody and Control Form (Federal CCF) is used by all Federal agencies and employers regulated by the Department of Transportation to document the collection and chain of custody of urine specimens at the collection site, for laboratories to report results, and for Medical Review Officers to make a determination. The current Federal CCF approved by OMB has a November 30, 2011 expiration date. SAMHSA has resubmitted the Federal CCF with revisions to the form for OMB approval.
• The first change is to add a new item in Step 1 of Copy 1, which lists the acronyms for the Federal testing authorities under which the specimen is collected. The new Step 1 (d) would read as follows: “D. Specify Testing Authority: HHS, NRC, DOT—Specify DOT Agency: FMCSA, FAA, FRA, FTA, PHMSA, USCG” with a checkbox beside each agency name.
• The second change is to revise the Federal CCF Copy 1 to permit use by Instrumented Initial Test Facility (IITF), in addition to laboratories.
• The third change is to add the new drug analytes required by the revised Guidelines to the Primary Specimen Report section in Step 5(a) on Copy 1. The new drug analytes are methylenedioxymethamphetamine (MDMA), commonly known as “ecstasy”; methyleneamphetamine (MDA), and methylenedioxyethylamphetamine (MDEA). MDA and MDEA are both close chemical analogues of MDMA.
• The fourth change is to revise the Medical Review Officer (MRO) reporting sections on Copy 2 for primary specimens (Step 6) and for split specimens (Step 7) to facilitate reporting in accordance with the Guidelines.
Below is a copy of the revised Federal CCF:
Prior to an inspection, a laboratory is required to submit specific information regarding its laboratory procedures. Collecting this information prior to an inspection allows the inspectors to thoroughly review and understand the laboratory's testing procedures before arriving at the laboratory.
The annual total burden estimates for the Federal Drug Testing Custody and Control Form, the NLCP application, the NLCP inspection checklist, and NLCP recordkeeping requirements are shown in the following table.
Written comments and recommendations concerning the proposed information collection should be sent by August 16, 2010 to: SAMHSA Desk Officer, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503; due to potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, respondents are encouraged to submit comments by fax to: 202-395-6974.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
As the Federal agency responsible for developing and disseminating authoritative knowledge about substance abuse prevention, addiction treatment, and mental health services and for mobilizing consumer support and increasing public understanding to overcome the stigma attached to addiction and mental illness, the Substance Abuse and Mental Health Services Administration (SAMHSA) is responsible for development and dissemination of a wide range of education and information materials for
Written comments and recommendations concerning the proposed information collection should be sent by August 16, 2010 to: SAMHSA Desk Officer, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503; due to potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, respondents are encouraged to submit comments by fax to: 202-395-5806.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for tobacco retailers entitled “Tobacco Retailer Training Programs.” The Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) does not require retailers to implement retailer training programs. However, the Tobacco Control Act does provide for lower civil money penalties for violations of access, advertising, and promotion restrictions issued under section 906(d) of the Federal Food, Drug, and Cosmetic Act (the act), as amended by the Tobacco Control Act, for retailers who have implemented a training program that complies with standards developed by FDA for such programs. FDA intends to issue regulations establishing standards for approved retailer training programs. In the interim, this draft guidance document is intended to assist tobacco retailers who wish to implement effective training programs for employees.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit electronic or written comments on the draft guidance and on the proposed collection of information by September 14, 2010.
Submit electronic comments on the draft guidance, including comments regarding the proposed collection of information to
Submit written requests for single copies of the draft guidance document entitled “Tobacco Retailer Training Programs” to the Center for Tobacco Products, Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850-3229. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the draft guidance document may be sent. See the
On June 22, 2009, the President signed the Tobacco Control Act (Public Law 111-31) into law. The Tobacco Control Act grants FDA important new authority to regulate the manufacture, marketing, and distribution of tobacco products to protect the public health generally and to reduce tobacco use by minors.
Among its many provisions, section 906(d) of the act, as amended by the Tobacco Control Act, states that “[t]he Secretary may by regulation require restrictions on the sale and distribution of a tobacco product, including restrictions on the access to, and the advertising and promotion of, the tobacco product, if the Secretary determines that such regulation would be appropriate for the protection of the public health.”
In accordance with section 102 of the Tobacco Control Act, FDA re-issued its 1996 final regulation restricting the sale and distribution of cigarettes and smokeless tobacco products. The regulation is deemed to be issued under Chapter 9 of the act, as amended by the Tobacco Control Act. The regulation contains: Provisions designed to limit young people's access to cigarettes and smokeless tobacco products, as well as restrictions on advertising and promotion of such products, to curb the appeal of these products to minors (75 FR 13225; March 19, 2010).
Section 103(q) of the Tobacco Control Act directs the agency to issue guidance regarding penalties retailers are subject to for violations of the restrictions issued under section 906(d) of the act, as amended by the Tobacco Control Act. FDA intends to issue a draft guidance document shortly that will describe the penalties that apply to retailers for violations of the requirements of the act, as amended by the Tobacco Control Act, and implementing regulations and establish the policies and procedures for assessing civil money penalties.
Section 103(q)(2) of the Tobacco Control Act includes two schedules for assessing civil money penalties against retailers for violations of restrictions issued under section 906(d) of the act, as amended by the Tobacco Control Act, pertaining to the sale and distribution of a tobacco product, including access, promotion, and advertising restrictions. Under each schedule, violators are subject to increasing penalties for multiple violations within prescribed time periods. For the first three violations in a 24-month period, retailers with an approved training program are subject to lower penalties than retailers without such programs. Section 103(q)(2)(B) defines “approved training program” as a training program that complies with standards developed by FDA for such programs. The act further provides that the amount of the civil money penalty ultimately assessed shall take into account, among other things, the degree of culpability of the violator. (21 U.S.C. 333(f)(5)(B), as amended by the Tobacco Control Act).
FDA intends to issue regulations establishing standards for approved retailer training programs. In the interim, however, FDA is issuing this draft guidance to provide recommendations on elements the agency believes should be included in an effective retailer training program. Until FDA issues these regulations, the agency intends to use the lower maximum civil money penalties schedule for all retailers who violate the regulations restricting the sale and distribution of cigarettes and smokeless tobacco products (75 FR 13225; March 19, 2010), whether or not they have implemented a training program. However, FDA may consider further reducing the civil money penalty for retailers who have implemented a training program.
In the
FDA is issuing this draft guidance document consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the agency's current thinking on “Tobacco Retailer Training Programs.” It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Interested persons may submit to the Division of Dockets Management (see
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the collection of information associated with this draft guidance, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The Tobacco Control Act does not require retailers to implement retailer training programs. However, the statute does provide for lesser civil money penalties for violations of access, advertising, and promotion restrictions of regulations issued under section 906(d) of the act, as amended by the Tobacco Control Act, for retailers who have implemented a training program that complies with standards developed by the FDA for such programs. The FDA intends to issue regulations establishing standards for approved retailer training programs. In the interim, the draft guidance is intended to assist tobacco retailers in implementing effective training programs for employees.
This draft guidance discusses the elements that should be covered in a training program, such as: (1) Federal
The draft guidance also recommends that retailers implement certain hiring and management practices as part of an effective retailer training program. The draft guidance suggests that applicants and current employees be notified both verbally and in writing of the importance of complying with laws prohibiting the sales of tobacco products to persons under the age of 18 and that they should be required to sign an acknowledgement stating that they have read and understand the information. In addition, FDA recommends that retailers implement an internal compliance check program and document the procedures and corrective actions for the program.
FDA's estimate of the number of respondents in tables 1 and 2 of this document is based on data reported to the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA). According to the fiscal year 2009 Annual Synar Report, there are 372,677 total retail tobacco outlets in the 50 States, District of Columbia, and 8 U.S. territories that are accessible to youth (meaning that there is no State law restricting access to these outlets to individuals older than age 18). Inflating this number by about 10 percent to account for outlets in States that sell tobacco but are, by law, inaccessible to minors results in an estimated total number of tobacco outlets of 410,000. We assume that 75 percent of tobacco retailers already have some sort of training program for age and identification verification. We expect that some of those retailer training programs already meet the elements in the draft guidance, some retailers would update their training program to meet the elements in the draft guidance, and other retailers would develop a training program for the first time. Thus, we estimate that two-thirds of tobacco retailers would develop a training program that meets the elements in the draft guidance (66 percent of 410,000=270,600).
FDA estimates the burden of this collection of information as follows:
An electronic version of the guidance document is available on the Internet at
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804;
The invention may also have potential use in diminishing allergic responses, as
• Vaccines against
• Discovery and use of other anti-parasitic antigens for vaccines.
• Potential for allergy therapy.
Chronic co-infection of HIV and hepatitis C virus (HCV) is associated with increased overall morbidity and mortality compared to those infected with just one virus. Recent data further suggests that co-infection is also associated with a more rapid progression of liver disease, higher HCV RNA viral levels, decreased cure rate of HCV, and increased toxicities of anti-HCV therapy. Finally, clinical trials have shown that many patients infected with both viruses do not respond to Interferon-based therapy. Research strongly suggests that non-responding patients have an increased level of a free-floating form of IFNAR2, which could block Interferon activity.
Resistance to Interferon therapy also occurs in other diseases, such as autoimmune diseases (e.g., lupus, scleroderma, psoriasis, vasculitis) and certain forms of cancer (e.g., Kaposi's sarcoma, follicular lymphoma). The various means by which resistance arises is currently being researched.
• Study of mechanisms of resistance to Interferon therapy in selected diseases, such as HCV/HIV co-infection and certain cancers.
• Study of Interferon-alpha in auto-immune diseases such as lupus, scleroderma, psoriasis, and vasculitis.
• Drug design and screening.
• A model to screen, develop, and test drugs for HCV among HCV/HIV co-infected patients not responding to Interferon.
• A model for basic research, to study the biology and role of IFNAR2 and its function, along with the role of the Interferon receptor in the development of disease resulting from activation of the immune system.
The invention utilizes controlled microwave (MW) irradiation to accelerate the FS process; and comprises systems, devices and methods for microwave-assisted processing of samples under cryo-conditions. The entire MWFS procedure has been accomplished in less than 4 hours as compared to the approximately 2-5 days required for FS.
• Provides superior preservation and rapid turnaround in research and high throughput clinical laboratory settings.
• Applicable to a broad range of biological samples, hydrogels, and other hydrated materials.
• Processing for light and electron microscopy.
• Low-temperature synthetic and analytical chemistry.
• Reduces processing periods from days to hours.
• Improves preservation, approaching native state.
• Enables uncomplicated, programmable operation.
• Provides excellent reproducibility.
• Proof of concept with varied biological samples.
• Adaptation of existing equipment with manual processing.
• Proposed designs for instrumentation and automation.
Smith-Lemli-Opitz Syndrome (SLOS) is an autosomal recessive disorder caused by an inborn error of cholesterol biosynthesis. It affects an estimated one in 20,000 to 60,000 newborns, and is most prevalent in Caucasians of Central European ancestry. It is characterized by distinctive facial features, microcephaly, mental retardation or learning disabilities, and behavioral problems, as well as malformations in many parts of the body, such as the heart, lungs, kidneys, gastrointestinal tract, and genitalia. However, the clinical manifestations of this disease can vary widely, ranging from relatively moderate symptoms to profoundly severe and life-threatening symptoms. At least 95% of SLOS patients present with some degree of mental retardation and learning disability.
Biochemically, SLOS is caused by disruption of the DHCR7 gene, which is responsible for the final step in the production of cholesterol; this results in low cholesterol levels and an accumulation of toxic byproducts of cholesterol biosynthesis in the blood, nervous system, and other tissues. Supplementary dietary cholesterol is provided to SLOS patients, but is often of limited clinical benefit; because levels of byproducts remain high, they may interfere with the uptake of free cholesterol.
Although some of the behavioral and learning problems are due to developmental problems, a portion of these symptoms are likely due to a biochemical disturbance. That biochemical disturbance is potentially treatable.
In their recent work, the inventors have discovered that the accumulation in SLOS cells of the cholesterol precursor 7-DHC causes abnormal sphingolipid storage and transport, resulting in a cellular phenotype similar to that observed in the lysosomal storage disease Niemann-Pick type C (NPC). They have also discovered that treatment with inhibitors of sphingolipid biosynthesis corrects these abnormalities, and thus such inhibitors are of potential therapeutic benefit for the treatment of SLOS, as well as for other diseases exhibiting similar defects in sphingolipid trafficking.
This technology claims compounds that inhibit sphingolipid biosynthesis for use in treating diseases which have a secondary Niemann-Pick type C disease-like cellular phenotype, including SLOS, as well as methods of treatment and pharmaceutical compositions.
1. FD Porter. Malformation syndromes due to inborn errors of cholesterol synthesis. J Clin Invest. 2002 Sep 15; 110(6):715-724. [PubMed: 12235098]
2. XS Jiang
3. XS Jiang
4. Tierney
• U.S. Patent Application No. 12/666,279 filed 19 Jan 2010 (HHS Reference No. E-206-2007/0-US-06).
• Related International patent applications.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final notice of Removal of Conditional Probationary Status.
Based on our review and observations, we have determined that the standards and processes used by the Community Health Accreditation Program (CHAP) hospice accreditation program meet or exceed our requirements. This final notice announces our decision to approve without condition CHAP's request for continued recognition as a national accreditation program for hospices seeking to participate in the Medicare or Medicaid programs.
Under the Medicare program, eligible beneficiaries may receive covered services in a hospice, provided certain requirements are met. Section 1861(dd)(1) of the Social Security Act (the Act) establishes distinct criteria for entities seeking designation as a hospice
Generally, in order to enter into an agreement, a hospice facility must first be certified by a State survey agency as complying with conditions or requirements set forth in part 418 of our regulations. Then, the hospice is subject to regular surveys by a State survey agency to determine whether it continues to meet these requirements. There is an alternative, however, to surveys by State agencies.
Section 1865(a)(1) of the Act provides that, if a provider entity demonstrates through accreditation by an approved national accreditation organization (AO) that all applicable Medicare conditions or requirements are met or exceeded, we may deem those provider entities as having met the requirements. Accreditation by an AO is voluntary and is not required for Medicare participation.
A national AO applying for approval of deeming authority under part 488, subpart A, must provide us with reasonable assurance that the AO requires the accredited provider entities to meet requirements that are at least as stringent as the Medicare conditions. Our regulations concerning re-approval of AOs are set forth at § 488.4 and § 488.8(d)(3). The regulations at § 488.8(d)(3) require AOs to reapply for continued approval of deeming authority every 6 years, or sooner as determined by CMS. The regulation at § 488.8(f)(3)(i) provides CMS the authority to grant conditional approval of an AO's deeming authority, with a probationary period of up to 180 days, if the AO has not adopted comparable standards during the reapplication process.
We received a complete application from CHAP for continued recognition as a national AO for hospices on March 27, 2009. In accordance with the requirements at § 488.4 and § 488.8(d)(3), we published a proposed notice on May 22, 2009 (74 FR 24015) and a final notice announcing our decision to conditionally approve CHAP's hospice program subject to probationary conditions on October 23, 2009 (74 FR 54832). This final notice provides CMS' final determination in response to the conditional approval with a 180-day probationary period granted to CHAP on October 23, 2009. This notice is required to be published no later than July 18, 2010.
Section 1865(a)(3)(A) of the Act provides a statutory timetable to ensure that our review of deeming applications is conducted in a timely manner. The Act provides us with 210 calendar days after the date of receipt of an application to complete our survey activities and application review process. Within 60 days of receiving a completed application, we must publish a notice in the
Our review of CHAP's renewal application for hospice deeming authority revealed that CHAP had on-going, serious, widespread areas of non-compliance. Specifically, CHAP's inability to provide us with accurate, timely data on deemed providers; lack of complete and accurate deemed facility survey files; and, failure to ensure that recertification surveys are conducted on an interval not exceeding 36 months. Due to the significant number of areas of noncompliance identified during the review of CHAP's deeming authority, we conditionally approved CHAP's hospice accreditation program with a 180 day probationary period. Under 1865(a)(2) of the Act and our regulations at § 488.4 and § 488.8, we conducted a comparability review of CHAP's hospice accreditation program to determine compliance with Medicare requirements for hospices at 42 CFR part 418.
During the 180 day probationary period, we conducted a comparison of CHAP's accreditation requirements for hospices to our current Medicare conditions of Participation (CoPs) as outlined in the State Operations Manual (SOM). We also conducted a corporate onsite visit to validate proper application of the requirements. Our review and evaluation of CHAP's deeming application yielded the following:
• CHAP's survey files were complete, accurate, and consistent with the requirements at § 488.6(a).
• CHAP's recertification surveys for hospices are conducted no later than 36 months after the date of the previous standard survey in accordance with the requirements at § 488.20(a).
• CHAP's data submission are accurate, complete and timely in accordance with the requirements at § 488.4(b).
• CHAP met the requirements at section 2728 of the SOM by developing an electronic plan of correction that specifically addressed the “who, what, when, and how” the hospice would correct each deficiency cited and ensure ongoing compliance.
• CHAP met requirements at § 488.28(a) and section 2728 of the SOM as evidenced by review of the survey files.
• CHAP policy regarding establishment of an effective date for new providers is consistent with the requirements at § 488.13.
Based on the review and observations, we have determined that CHAP's hospice accreditation program meets or exceeds our requirements. Therefore, we approve CHAP as a national AO for hospices that request participation in the Medicare program, effective November 20, 2009 through November 20, 2012. Under § 488.8(f)(4), notice was given to CHAP on October 23, 2009 (74 FR 54832).
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Office of the Citizenship and Immigration Service Ombudsman, DHS.
30-Day Notice and request for comments; Revision of an existing information collection, 1601-0004.
The Department of Homeland Security, Office of the Citizenship and Immigration Service Ombudsman, DHS will submit the following information collection request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). DHS previously published this information collection request (ICR) in the
Comments are encouraged and will be accepted until August 16, 2010. This process is conducted in accordance with 5 CFR 1320.10.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to OMB Desk Officer, Department of Homeland Security and sent via electronic mail to
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
If additional information is required contact: The Department of Homeland Security (DHS), Office of the Citizenship and Immigration Services Ombudsman, DHS, Attn.: Director of Communications, Mail Stop 1225, Washington, DC 20528-1225. Comments may also be submitted to DHA via facsimile to 202-272-8352, 202-357-0042 or via e-mail at
The Department of Homeland Security would like to revise the currently approved collection of information to provide an electronic means of collecting and submitting the CIS Ombudsman Case Problem Submission Worksheet, DHS Form 7001. The CIS Ombudsman is an independent office that reports directly to the Deputy Secretary of Homeland Security. The system will collect and maintain records of correspondence received from individuals, employers, and designated representatives. In accordance with the Privacy Act of 1974, DHS is issuing a system of records notice for the CISOMB Virtual Ombudsman records. This record system will allow CISOMB to collect information to receive and process correspondence received from individuals, employers, and their designated representatives to: (1) Assist individuals and employers in resolving problems with U.S. Citizenship and Immigration Services (USCIS); (2) identify areas in which individuals and employers have problems in dealing with USCIS; and (3) to the extent possible, propose changes to mitigate problems as mandated by 6 U.S.C. 272. This new system will be included in the Department's inventory of record systems. CISOMB receives cases through: (1) CISOMB's paper form 7001, Case Problem Submission Worksheet and Supporting Statement Case Problem Submission Form, which is posted on the DHS CISOMB Internet Web site at
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of New York (FEMA-1899-DR), dated April 16, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this declared disaster is now March 13, 2010, through and including March 31, 2010.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of California (FEMA-1911-DR), dated May 7, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this disaster is closed effective July 4, 2010.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of New York (FEMA-1899-DR), dated April 16, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of New York is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of April 16, 2010.
Otsego, Schoharie, and Warren Counties for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of West Virginia (FEMA-1918-DR), dated June 24, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that the incident period for this disaster is closed effective June 29, 2010.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Oklahoma (FEMA-1917-DR), dated May 24, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Oklahoma is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of May 24, 2010.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the Commonwealth of Virginia (FEMA-1905-DR), dated April 27, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the Commonwealth of Virginia is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of April 27, 2010.
Page County for Public Assistance. The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of West Virginia (FEMA-1918-DR), dated June 24, 2010, and related determinations.
Peggy Miller, Recovery Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of West Virginia is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of June 24, 2010.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Leroy McKinney, Jr., Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street, SW., Room 4178, Washington, DC 20410-5000; telephone 202.402.5564, (this is not a toll-free number) or e-mail Mr. McKinney at
Dacia Rogers, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street, SW., Room 4116, Washington, DC 20410; telephone 202-402-3374, (this is not a toll-free number).
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). This notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Kathy Ezzell, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7262, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with the December 12, 1988 court order in
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
This notice announces changes in the interest rates to be paid on debentures issued with respect to a loan or mortgage insured by the Federal Housing Administration (FHA) under the provisions of the National Housing Act (the Act). The interest rate for debentures issued under section 221(g)(4) of the Act during the 6-month period beginning July 1, 2010, is 3
Yong Sun, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 5148, Washington, DC 20410-8000; telephone number 202-402-4778 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the toll-free Federal Information Relay Service telephone number at 800-877-8339.
Section 224 of the National Housing Act (12 U.S.C. 1715o) provides that debentures issued under the Act with respect to an insured loan or mortgage (except for debentures issued pursuant to section 221(g)(4) of the Act) will bear interest at the rate in effect on the date the commitment to insure the loan or mortgage was issued, or the date the loan or mortgage was endorsed (or initially endorsed if there are two or more endorsements) for insurance, whichever rate is higher. This provision is implemented in HUD's regulations at 24 CFR 203.405, 203.479, 207.259(e)(6), and 220.830. These regulatory provisions state that the applicable rates of interest will be published twice each year as a notice in the
Section 224 further provides that the interest rate on these debentures will be set from time to time by the Secretary of HUD, with the approval of the Secretary of the Treasury, in an amount not in excess of the annual interest rate
The Secretary of the Treasury (1) has determined, in accordance with the provisions of section 224, that the statutory maximum interest rate for the period beginning July 1, 2010, is 4
For convenience of reference, HUD is publishing the following chart of debenture interest rates applicable to mortgages committed or endorsed since January 1, 1980:
Section 215 of Division G, Title II of Public Law 108-199, enacted January 23, 2004 (HUD's 2004 Appropriations Act) amended section 224 of the Act, to change the debenture interest rate for purposes of calculating certain insurance claim payments made in cash. Therefore, for all claims paid in cash on mortgages insured under section 203 or 234 of the National Housing Act and endorsed for insurance after January 23, 2004, the debenture interest rate will be the monthly average yield, for the month in which the default on the mortgage occurred, on United States Treasury Securities adjusted to a constant maturity of 10 years, as found in Federal Reserve Statistical Release H-15. The Federal Housing Administration has codified this provision in HUD regulations at 24 CFR 203.405(b) and 24 CFR 203.479(b).
Section 221(g)(4) of the Act provides that debentures issued pursuant to that paragraph (with respect to the assignment of an insured mortgage to the Secretary) will bear interest at the “going Federal rate” in effect at the time the debentures are issued. The term “going Federal rate” is defined to mean the interest rate that the Secretary of the Treasury determines, pursuant to a statutory formula based on the average yield on all outstanding marketable Treasury obligations of 8- to 12-year maturities, for the 6-month periods of January through June and July through December of each year. Section 221(g)(4) is implemented in the HUD regulations at 24 CFR 221.255 and 24 CFR 221.790.
The Secretary of the Treasury has determined that the interest rate to be borne by debentures issued pursuant to section 221(g)(4) during the 6-month period beginning July 1, 2010, is 3
The subject matter of this notice falls within the categorical exemption from HUD's environmental clearance procedures set forth in 24 CFR 50.19(c)(6). For that reason, no environmental finding has been prepared for this notice.
Sections 211, 221, 224, National Housing Act, 12 U.S.C. 1715b, 1715l, 1715o; Section 7(d), Department of HUD Act, 42 U.S.C. 3535(d).
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that the Bureau of Land Management (BLM) will issue an appealable decision approving the conveyance of surface and subsurface estates for certain lands to Cook Inlet Region, Inc., pursuant to the Alaska Native Claims Settlement Act and the Act of January 2, 1976. The lands are in the vicinity of Healy, Alaska, and are located in:
Containing approximately 80 acres.
Notice of the decision will also be published four times in the Fairbanks Daily News-Miner.
Any party claiming a property interest in the lands affected by the decision may appeal the decision within the following time limits:
1. Unknown parties, parties unable to be located after reasonable efforts have been expended to locate, parties who fail or refuse to sign their return receipt, and parties who receive a copy of the decision by regular mail which is not certified, return receipt requested, shall have until August 16, 2010 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4, subpart E, shall be deemed to have waived their rights.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222 West Seventh Avenue, #13 Anchorage, Alaska 99513-7504.
The BLM by phone at 907-271-5960, by e-mail at
Pursuant to § 102(2)(C) of the National Environmental Policy Act of 1969 (Pub. L. 91-190, as amended), and the Council on Environmental Quality Regulations (40 CFR part 1500-1508), the National Park Service (NPS), Department of the Interior, has prepared a draft environmental impact statement for the proposed General Management Plan (GMP) for Ross Lake National Recreation Area (Ross Lake NRA) in Washington State. Ross Lake NRA is one of three units comprising the North Cascades National Park Service Complex. The draft GMP describes three “action” alternatives that respond to both NPS planning requirements and to the public's concerns and issues, identified during the scoping and public involvement process. Each alternative presents management strategies for resource protection and preservation, education and interpretation, visitor use and facilities, land protection and boundaries, and long-term operations and management of Ross Lake NRA.
The potential environmental consequences of all the alternatives, and mitigation strategies, are identified and analyzed in the DEIS. In addition to the “action” alternatives, a “no action” baseline alternative is considered, and the “environmentally preferred” course of action is identified. This GMP will replace portions of the 1988 North Cascades NPS Complex GMP that provided early guidance for managing Ross Lake NRA.
An extensive public outreach effort was undertaken to elicit early public comment regarding issues and concerns, the nature and extent of potential environmental impacts, and possible alternatives that should be addressed in drafting the GMP. Agencies, organizations, governmental representatives, and tribal governments were sent letters of invitation to attend the public workshops or individual meetings. Press releases were distributed to local and regional news media. In addition, the conservation planning effort was launched on the
Seven public workshops were hosted in western Washington and southern British Columbia during October 2006; meetings began with a presentation of Ross Lake NRA and the GMP planning process, then transitioned into a facilitated group discussion format. Meetings were held in Washington State in Concrete, Marblemount, Sedro-Woolley, Seattle and Bellingham, and in Surrey and Chilliwack, British Columbia. A total of 63 people attended the meetings overall.
During the initial scoping period, correspondence was received from over 80 individuals and organizations that yielded over 750 specific comments. All comments received were carefully reviewed by the NPS interdisciplinary planning team in preparing the DEIS/GMP, and are preserved in the project administrative record.
The NPS conducted an additional round of public involvement at the draft alternatives phase to ensure full public awareness of the proposed range of alternatives. The primary purpose of this planning step was to understand the public's concerns and preferences with regard to the range of draft alternatives and to assist the planning team in refining the draft alternatives and selecting a preferred alternative. This effort was initiated in February 2008 when the NPS produced and mailed the Draft Alternatives Newsletter to approximately 450 contacts on Ross Lake NRA's mailing list (it was also announced on the project Web sites). The Newsletter fully outlined concepts and actions in the draft alternatives and proposed management zones, and contained a business reply questionnaire providing an option for the public to comment on the four draft alternatives. Press releases were prepared and mailed to local media in advance of the public meetings. A total of 32 written responses concerning the draft alternatives were received in the form of letters, e-mails, newsletter questionnaires, and internet comments. The NPS also hosted four public workshops in Concrete, Sedro-Woolley, Bellingham, and Seattle in February and March 2008. Seventy people participated in the public workshops and provided oral comments. In total 539 individual comments were received on the draft alternatives and covered a broad range of topics, issues, and recommendations for Ross Lake NRA.
Recreation in Ross Lake NRA would be enhanced along the North Cascades Highway corridor through the addition of limited new facilities, including dayhiking trails, reconfigured parking areas, a new Wilderness Information Center, and the modest expansion of overnight facilities and concessions. Recreation in the Wilderness and backcountry areas of Ross Lake NRA, including Ross Lake, would focus on providing visitors with opportunities for solitude and connections with the natural world. Self-propelled and non-mechanized recreation would be encouraged throughout Ross Lake NRA. Regulations for motorized water recreation would work to maintain the ambient character and experience on the lakes and the Skagit River, while also moving towards cleaner technologies. An online reservation and permit system would allow visitors the opportunity for advance trip planning. If a catastrophic event led to destruction of visitor facilities, the NPS would strive to offer similar visitor facilities in the vicinity while ensuring no net loss of visitor opportunities.
Overnight accommodations, several new trails, and additional visitor amenities would expand visitor opportunities in Ross Lake NRA primarily along the North Cascades Highway corridor. The public functions of the Wilderness Information Center would be moved to an easily accessible location on Highway 20. A wide variety of recreational activities would be allowed throughout Ross Lake NRA, and there would be fewer restrictions on recreational activities than under the other alternatives. An online reservation and permit system would allow visitors the opportunity for advance trip planning. In the event of a catastrophic event and destruction of any visitor facilities, the NPS would close affected facilities and build new facilities on other locations to ensure no net loss of visitor opportunities.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969, as amended, the Bureau of Land Management (BLM) has prepared a Draft Environmental Impact Statement (EIS) for the North Steens Transmission Line Project and by this notice is announcing the opening of the comment period.
To ensure comments will be considered, the BLM must receive written comments on the Draft EIS within 45 days following the date the Environmental Protection Agency publishes its Notice of Availability in the
You may submit comments related to the North Steens Transmission Line Project by any of the following methods:
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• Written comments may also be hand-delivered to the BLM Burns District Office at the address shown above.
For further information contact Robert Renchler, North Steens Transmission Line Project Lead, telephone (541) 573-4400; address 28910 Highway 20 West, Hines, Oregon 97738; or e-mail:
The applicant, Echanis, LLC, has filed applications for rights-of-way with the BLM and the U.S. Fish and Wildlife Service (FWS) for construction, operation, maintenance, and termination of a 29-mile long 230-kilovolt (kV) transmission line that would connect the proposed Echanis Wind Energy Project, located on private land on the north end of Steens Mountain, with Harney Electric Cooperative's existing transmission system near Diamond Junction, Oregon. The proposed line (Proposed Action, West Route-Alternative B) would cross approximately 19 miles of private land, 9 miles of BLM-administered public land, and 1.3 miles of land on the Malheur National Wildlife Refuge that is managed by the FWS, including a span over the Blitzen Valley. The Draft EIS analyzes impacts of six alternatives: the Proposed Action, two deviations of the proposed route, a north route alternative, a 115-kV construction option, and the No Action Alternative. The Draft EIS also identifies and analyzes measures to mitigate adverse impacts for each alternative. The private wind energy facilities and associated features are also analyzed in the Draft EIS. Major issues brought forward during the public scoping process and addressed in the Draft EIS include:
(1) Vegetation;
(2) Wildlife;
(3) Visual and aesthetic values;
(4) Lands with special designations;
(5) Cultural and tribal resources;
(6) Public services and transportation;
(7) Recreation and tourism;
(8) Social and economic effects; and
(9) Public safety.
A Notice of Intent to Prepare an EIS for the North Steens Transmission Line Project was published in the
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6 and 1506.10.
Bureau of Land Management, Interior.
Notice of availability.
Under the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act of 1976 (FLPMA) and associated regulations, the Bureau of Land Management (BLM) has prepared a Draft Environmental Impact Statement (EIS) that evaluates, analyzes, and discloses to the public direct, indirect, and cumulative environmental impacts of a proposal to develop natural gas in Uintah County, Utah. This notice announces a 45-day public comment period to meet the requirements of the NEPA and Section 106 of the National Historic Preservation Act.
The Draft EIS will be available for public review for 45 calendar days following the date that the Environmental Protection Agency publishes its Notice of Availability in the
Comments on the Draft EIS may be submitted by any of the following methods:
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Please reference the Greater Natural Buttes EIS when submitting your comments. Comments and information submitted on the Draft EIS for the Greater Natural Buttes project, including names, e-mail addresses, and street addresses of respondents will be available for public review at the Vernal Field Office. The BLM will not accept anonymous comments. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Stephanie Howard, Project Manager, BLM Vernal Field Office, 170 South 500 East, Vernal, Utah, 84078; telephone, 435-781-4400.
The Draft EIS is located online at
The new gas wells would be drilled as infill to productive formations, including but not limited to, the Green River Formation, Wasatch Formation, Mesaverde Group (including the Blackhawk Formation), Mancos Shale, and Dakota Sandstone. Target depths would range from approximately 2,000 to 16,000 feet. Infill drilling would be performed on 40-acre and 20-acre surface spacing throughout the GNBPA, which is equivalent to a density of 16 to 32 surface well pads per section (or square mile). The Proposed Action and alternatives incorporate best management practices for oil and gas development and other measures necessary to address impacts to transportation, public safety, cultural resources, recreational opportunities, wildlife, threatened and endangered species, visual resources, air quality, wilderness characteristics, and other relevant issues.
The Draft EIS describes and analyzes the impacts of KMG's Proposed Action and three alternatives, including the No Action Alternative. Additional alternatives were considered but eliminated from detailed analysis. The following is a summary of the alternatives:
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The public is encouraged to comment on any of these alternatives. The BLM asks that those submitting comments make them as specific as possible with reference to chapters, page numbers, and paragraphs in the Draft EIS document. Comments that contain only opinions or preferences will not receive a formal response; however, they will be considered, and included, as part of the BLM decision-making process. The most useful comments will contain new technical or scientific information, identify data gaps in the impact analysis, or provide technical or scientific rationale for opinions or preferences.
Bureau of Land Management, Interior.
Notice of intent.
In compliance with the National Environmental Policy Act of 1969 (NEPA), as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM), Battle Mountain District, Mount Lewis Field Office, Battle Mountain, Nevada, intends to prepare a Supplemental Environmental Impact Statement (EIS) for the Cortez Hills Expansion Project in Lander County, Nevada.
This notice initiates the NEPA process for the Supplemental EIS. We will provide opportunities for public participation upon publication of the Draft Supplemental EIS.
Background information, print and electronic copies of the 2008 Final EIS for the Cortez Hills Expansion Project are available at the BLM Battle Mountain District Office, 50 Bastian Road, Battle Mountain, Nevada, during regular business hours of 7:30 a.m. to 4:30 p.m., Monday through Friday, except holidays. Copies of the 2008 Final EIS are also available at the following Web site:
For further information and/or to have your name added to our mailing list, contact Christopher Worthington, (775) 635-4000, or
The BLM signed a Record of Decision on November 12, 2008, for the Cortez Gold Mines (CGM) Cortez Hills Expansion Project, which is an expansion of existing open-pit gold mining and processing operations in northeastern Nevada. The project entails new surface disturbance of approximately 6,633 acres, including 6,412 acres of public land administered by the BLM Battle Mountain District and 221 acres of private land owned by CGM. The Notice of Availability of the Final Cortez Hills Expansion Project Environmental Impact Statement, Nevada was published in the
On December 3, 2009, the United States Court of Appeals for the Ninth Circuit partially reversed the lower court's denial of preliminary injunctive relief with respect to BLM's environmental analysis of air quality and water resource issues. The BLM subsequently elected to prepare a Supplemental EIS to refine the analysis of potential air quality effects and the dewatering mitigation effectiveness for the Cortez Hills Expansion Project.
40 CFR 1501.7.
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA), as amended, the Bureau of Land Management (BLM) has prepared a Draft Environmental Impact Statement (EIS) for the Proposed
To ensure comments will be considered, the BLM must receive written comments on the
You may submit comments related to the
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Please write “OTR Comments” in the subject line of comments that are e-mailed or faxed. Copies of the
For further information contact Mr. Vincent Hooper,
The OTR Corporation (OTR Corp.), formed by the artists Christo and Jeanne-Claude, proposes to install a work of art, known as
The proposed art exhibit involves the installation of 925 porous, semi-transparent fabric panels, weighing an average of 140 lbs/panel. These panels would be suspended 8 to 25 feet above the water for a total of 5.9 miles in eight locations dispersed along a 42-mile stretch of the Arkansas River. A support structure of an estimated 9,100 steel anchors would be drilled along and into the banks of the Arkansas River to support 2,275 steel anchor transition frames for an estimated 1,275 steel cables that would support the fabric panels. OTR Corp. also proposes to construct two equipment laydown areas totaling approximately 56 acres (acreage includes visitor facilities) and a 4,000-square-foot warehouse/office building. Upon project completion, the warehouse would be donated to a public agency or deconstructed and removed from the site.
The earliest that the project would be exhibited is in 2013. An estimated 344,000 visitors (which includes 100,000 baseline visitors to the area) are expected to visit the Arkansas River canyon during the 2-week exhibition period. An additional 36,000 visitors are expected to view both the installation and the removal of the art. The resulting traffic in the area is estimated to be 118,620 cars during the overall exhibition period, and 12,862 cars during installation and removal. It is assumed there would be an average of 2.9 visitors per vehicle.
The footprint of the proposed project would encompass approximately 310 acres. The project would be located primarily on Federal lands administered by the BLM Royal Gorge Field Office, but would also be located on lands owned or managed by the Colorado State Land Board (SLB), Union Pacific Railroad, and private landowners; lands leased by the Colorado Division of Wildlife (CDOW); and lands owned or cooperatively managed by Colorado State Parks in the AHRA. The Colorado Department of Transportation (CDOT) and Colorado State Patrol (CSP) have jurisdiction for activities along U.S. Highway 50. The majority of the project area is within Fremont County. However, a small portion at the western end of the project is within Chaffee County. Approximately 80 percent of the area in the proposed project would be located in the Arkansas Canyonlands Area of Critical Environmental Concern (ACEC), a BLM-specific designation that recognizes the need for recreation use as well as protection of outstandingly remarkable values.
The BLM Royal Gorge Field Office is the lead Federal agency responsible for preparing the EIS and complying with the requirements of NEPA and other applicable laws and regulations. Multiple cooperating agencies and permitting authorities have participated and provided input in the development of the Draft EIS including the Colorado Department of Natural Resources (DNR)—which consists of CDOW, Colorado State Parks, and SLB—as well as CDOT, CSP, and Chaffee and Fremont counties.
Considerations for decisions to be made through the BLM's EIS process include:
• Whether to authorize, and under what terms and conditions, the artists' request for use of public lands;
• Which combination of project elements may be authorized if the proposed project is determined to result in unacceptable impacts and the artists' proposed action is not authorized in its entirety;
• Whether some or all mitigation measures identified in the EIS may be adopted or if additional measures may be required;
• Whether the project and its potential effects are in conformance with the Resource Management Plan (RMP), including the Arkansas Canyonlands ACEC; and
• Whether an amendment to the Royal Gorge Resource Area RMP is
This Draft EIS analyzes seven separate alternatives, including the No Action Alternative. The action alternatives were developed to consider and compare configurations of public lands that could be made available for artistic panel placement as well as construction, logistics, traffic planning, and visitor management. The process of developing a range of alternatives began with a review of the artists' proposal and public and agency scoping comments, as well as a series of cooperating agency meetings. The following four project components, each of which could be altered in various ways to respond to known issues and concerns, formed the basis of the alternatives development process: panel placement, transportation, visitor management, and temporal considerations.
The primary issues that were identified as key general concerns of the public, project team staff, and cooperators that are further analyzed in this Draft EIS include: emergency response; project engineering; natural and cultural resources (including soils, geology, noxious weeds, and wildland fire); pollution and sanitation; public safety; recreation; socioeconomics; transportation; and wildlife.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6, 40 CFR 1506.10.
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the Secretary's certification of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Gun Lake) Liquor Control Ordinance. The Ordinance regulates and controls the possession, sale, and consumption of liquor within the tribal lands. The tribal lands are located in Indian Country and this Ordinance allows for possession and sale of alcoholic beverages within their boundaries. This Ordinance regulates the possession, sale and consumption of alcoholic beverages on tribal trust land in conformity with applicable tribal, Federal and state laws.
David Christensen, Tribal Operations Officer, Midwest Regional Office, One Federal Drive, Room 550, Ft. Snelling, MN 55111, Telephone (612) 725-4554; or Elizabeth Colliflower, Office of Tribal Services, 1849 C Street, NW., Mail Stop 4513-MIB, Washington, DC 20240; Telephone (202) 513-7641.
Pursuant to the Act of August 15, 1953, Public Law 83-277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that this Liquor Ordinance of the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Gun Lake) was duly adopted by its Tribal Council by Resolution No. 10-582 on March 9, 2010.
The Liquor Ordinance of the Gun Lake Tribe Liquor Control Ordinance reads as follows:
Section 1 This Ordinance may be cited as the “Gun Lake Tribe Liquor Control Ordinance.”
Section 2 The purpose of this Ordinance is to regulate the possession, sale and consumption of Alcoholic Beverages on Tribal Trust Land in conformity with applicable Tribal, federal, and state law.
Section 3 The possession, transportation, storage, sale and consumption of Alcoholic Beverages shall be lawful on Tribal Trust Land, provided that such activities comply with the provisions of this Ordinance, and with the applicable provisions of the laws of the State of Michigan.
For purposes of this Ordinance the following definitions apply:
(a) “Alcohol” means that substance known as ethyl alcohol, hydrated oxide of ethyl, or spirit of wine, commonly produced by the fermentation or distillation of grain, starch, grapes, molasses or other substances,
(b) “Alcoholic Beverage” means any liquid or mixture intended for human consumption that contains more than 0.5% of Alcohol by volume.
(c) “Intoxicated Person” means a person whose mental or physical functioning is impaired as a result of the use of alcohol.
(d) “Licensee” means one who holds a valid license from the Tribe to sell Alcoholic Beverages on the Tribal Trust Land, and includes employees or agents of the Licensee.
(e) “Minor” means a person less than twenty-one (21) years of age.
(f) “Ordinance” means this Ordinance to regulate the possession, transportation, storage, sale and consumption of Alcoholic Beverages, adopted pursuant to 18 U.S.C. 1161.
(g) “Tribal Council” means the governing body of the Tribe as established by Article VI of the Tribe's Constitution.
(h) “Tribal Court” means the Court established pursuant to Article VII, Section 1(s) of the Tribe's Constitution.
(i) “Tribal Trust Land” means those lands held in trust by the United States of America for the benefit of the Tribe.
(j) “Tribe” means the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians of Michigan, also known as the Gun Lake Tribe.
Section 1 No person or entity shall engage in the sale of Alcoholic Beverages on Tribal Trust Land, unless licensed to do so by the Tribal Council in accordance with the terms of this Ordinance and in compliance with the Tribal-State Class III Gaming Compact between the Tribe and the State of Michigan.
Section 2 The authority to issue, suspend and revoke a Tribal Liquor License is vested in the Tribal Council, under Article VII, Section 1 (q) of the Tribe's Constitution. No License shall be issued under this Ordinance except upon a sworn application filed with the Tribal Council containing, at a minimum, the following:
(a) A description of the area or premises to be licensed and the hours that Alcoholic Beverages will be served.
(b) An agreement by the applicant to observe and abide by all conditions of the Tribal Liquor License, all applicable state liquor laws, and federal law.
(c) A statement that the applicant has never been convicted of a felony.
(d) An application fee in an amount set by the Tribal Council.
Section 3 Notice of the Tribal Liquor License application shall be posted on the premises and distributed to Tribal Citizens in a manner that provides an opportunity to comment or file a protest regarding the application.
Section 4 Every Tribal Liquor License application shall be considered by the Tribal Council in a meeting at which the applicant and Tribal Citizens shall have the right to be present, to observe the proceedings, and to offer sworn oral or written testimony or other evidence relevant to the application. After the meeting, the Tribal Council shall determine whether to grant or deny the License, based on whether the Tribal Council, in its sole discretion, determines that granting the License is in the best interest of the Tribe.
Section 5 Any Tribal Liquor License shall be subject to such conditions as the Tribal Council shall impose, including, but not limited to the following:
(a) The License shall be for a term of one year, shall identify the specific areas and hours permitted for the sale of Alcoholic Beverages, and shall be subject to annual renewal.
(b) The Licensee shall at all times maintain an orderly, clean, and neat establishment, both inside and outside the licensed premises.
(c) The licensed premises shall be open to inspection by duly authorized Tribal officials at all times during regular business hours.
(d) No Alcoholic Beverages shall be sold, served, disposed of, delivered, or given to any person, or consumed on the licensed premises, except during the hours and days that would be permitted by the applicable laws of the State of Michigan, unless the hours of service are further limited by the Tribal Council.
(e) Any spirits resold for consumption on the Tribal Trust Land shall be purchased from the Michigan Liquor Control Commission, and beer and wine shall be purchased from distributors licensed by the Michigan Liquor Control Commission.
(f) All acts and transactions performed under authority of the Tribal Liquor License shall be in conformity with the applicable laws of the State of Michigan, the provisions of this Ordinance, and any rules or policies promulgated under this Ordinance.
(g) No person under the age of twenty-one (21) shall be sold, served, delivered, given or allowed to consume Alcoholic Beverages at any location on the Tribal Trust Land, and no person under the age of eighteen (18) years shall be employed to sell or serve any Alcoholic Beverages.
(h) Alcoholic Beverages shall not be comped, given away, or furnished without charge in any facility licensed under this Ordinance.
(i) No person licensed under this Ordinance shall sell, deliver, give, or furnish any Alcoholic Beverage to any Intoxicated Person.
Section 6 Notwithstanding any other provision of this Ordinance, a Tribal Liquor License is a permit for a fixed time period. A Tribal Liquor License shall not be deemed a property right or vested right of any kind. The granting of a Tribal Liquor License shall not create any entitlement to any renewal of such license.
Section 7 No Tribal Liquor License issued under this Ordinance may be assigned, pledged, transferred, leased, licensed or sold. Any attempt to do so is grounds for the immediate revocation of the License.
Section 8 Any Tribal Liquor License issued hereunder may be suspended or revoked by the Tribal Council for the breach of any provision of this Ordinance, or any condition of the Tribal Liquor License, upon fifteen (15) days written notice to the Licensee, unless a shorter notice period is necessary to preserve public health and safety on the Tribal Trust Land. The Licensee may request a hearing before the Tribal Council. The decision of the Tribal Council shall be final.
Section 1 In accordance with 18 U.S.C. 1161, the Tribe hereby adopts and applies as tribal law those Michigan laws, as now or hereafter amended, relating to the sale and regulation of Alcoholic Beverages encompassing the following areas: Sale to a Minor; sale to a visibly intoxicated individual; sale of adulterated or misbranded liquor; and hours of operation.
The following laws from the Michigan Liquor Control Code of 1998 are hereby adopted and applied as Tribal law:
436.1233 Uniform prices for sale of alcoholic liquor; gross profit; discount for certain sales of alcoholic liquor.
436.1701 Selling or furnishing alcoholic liquor to person less than 21 years of age; failure to make diligent inquiry; misdemeanor; signs; consumption of alcoholic liquor as cause of death or injury; felony; enforcement against licensee; defense in action for violation; report; definitions.
436.1703 Purchase, consumption, or possession of alcoholic liquor by minor; attempt; violation; fines; sanctions; furnishing fraudulent identification to minor; screening and assessment; chemical breath analysis; construction of section; exceptions; “any bodily alcohol content” defined.
436.1707 Selling, serving, or furnishing alcohol; prohibitions.
436.1801 Granting or renewing license; selling, furnishing or giving alcoholic liquor to minor or person visibly intoxicated; right of action for damage or personal injury; actual damages; institution of action; notice; survival of action; separate actions by parents; commencement of action against retail licensee; indemnification; defenses available to licensee; rebuttable presumption; prohibited causes of action; section as exclusive remedy for money damages against licensee; civil action subject to revised judicature act.
436.1815 Adherence to responsible business practices as defense; compensation of employee on commission basis.
436.1901 Compliance required, prohibited acts.
436.1905 Selling or furnishing alcoholic liquor to minor; enforcement actions prohibited; conditions; exception.
436.2005 Adulterated, misbranded, or refilled liquor.
436.2025 Giving away alcoholic liquor; samplings or tastings of alcoholic liquor; sales to intoxicated persons prohibited.
The laws referenced in this section shall apply in the same manner and to the same extent as such laws apply elsewhere in Michigan, unless otherwise agreed by the Tribe and State.
Section 2 Whenever such Michigan laws are incorporated by reference, amendments to those laws shall also be deemed to be incorporated upon their effective date in the State of Michigan, without the need for further action by the Tribal Council.
Section 3 Nothing in this Ordinance shall be construed as consent by the Tribe to the jurisdiction of the State of Michigan or any of its courts or subordinate political subdivisions over any activity arising under this Ordinance, nor shall anything in this Ordinance constitute an express or implied waiver of the sovereign immunity of the Tribe.
Section 1 Any violation of this Ordinance, including any regulation under this Ordinance, shall be subject to a civil fine of not more than Five Hundred Dollars ($500.00) for each such violation. The Tribal Council may adopt by Resolution a schedule of fines for each violation, taking into account the severity of the offense and threat the violation may pose to the general health and welfare. Such schedule may also provide for the imposition of increased monetary penalties for repeated violations. The civil penalties provided for in this section shall be in addition to any criminal penalties that may be imposed under applicable law.
Section 2 The Tribal Council is authorized to adopt such regulations as may be necessary to implement the provisions of this Ordinance.
Section 3 This Ordinance shall take effect immediately upon its adoption by the Tribal Council.
National Park Service, Department of the Interior.
Notice of meeting.
Notice is hereby given that a meeting of the Chesapeake and Ohio Canal National Historical Park Advisory Commission will be held at 9 a.m., on Friday, August 13, 2010, at the Brunswick City Hall, 1 West Potomac Street, Brunswick, Maryland 21716.
Friday, August 13, 2010.
Brunswick City Hall, 1 West Potomac Street, Brunswick, Maryland 21716.
Kevin Brandt, Superintendent, Chesapeake and Ohio Canal National Historical Park, is available to provide further information and to receive comments prior to the meeting, at 1850 Dual Highway, Suite 100, Hagerstown, Maryland 21740, telephone: (301) 714-2201. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The Commission was established by Public Law 91-664 to meet and consult with the Secretary of the Interior on general policies and specific matters related to the administration and development of the Chesapeake and Ohio Canal National Historical Park.
The members of the Commission are as follows:
Topics that will be presented during the meeting include:
1. Update on park operations;
2. Update on major construction development projects;
3. Update on partnership projects.
The meeting will be open to the public. Any member of the public may file with the Commission a written statement concerning the matters to be discussed. Persons wishing further information concerning this meeting, or who wish to submit written statements, may contact Kevin Brandt, Superintendent, Chesapeake and Ohio Canal National Historical Park. Minutes of the meeting will be available for public inspection six weeks after the meeting at Chesapeake and Ohio Canal National Historical Park Headquarters, 1850 Dual Highway, Suite 100, Hagerstown, Maryland 21740.
Bureau of Land Management, Interior.
Notice of Reinstatement of Terminated Oil and Gas Lease.
Under the Class II provisions of the Federal Oil and Gas Royalty Management Act of 1982, the Bureau of Land Management received a petition for reinstatement of oil and gas lease NMLC 066147 from the lessee(s), Estate of C.W. Trainer, Zia Royalty LLC, Grady Thompson, Collin S. Smith, R.G. Barton Jr., Trust, E.F. Howe, HOG Partnership LP, Phillip G. Herkenhuff, Gordon E. Herkenhuff, Edna Gay H. Dwyre, Devon Energy Production Company LP, College of Southwest, George W. Baker, for lands in Lea County, New Mexico. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Lourdes B. Ortiz, Bureau of Land Management, New Mexico State Office, P.O. Box 27115, Santa Fe, New Mexico 87502-0115 or at (505) 954-2146.
No valid lease has been issued that affects the lands. The lessees agree to new lease terms for rentals and royalties of $10 per acre or a fraction thereof, per year, and 18
Bureau of Land Management, Interior.
Notice.
Under the provisions of the Mineral Leasing Act of 1920, as amended, the Bureau of Land Management (BLM) received a petition for reinstatement from CKT Energy LLC for competitive oil and gas lease WYW164386 for land in Campbell County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Julie L. Weaver, Chief, Branch of Fluid Minerals Adjudication, at (307) 775-6176.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10 per acre or fraction thereof, per year and 16
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on May 15, 2007, applicable to workers of Delphi Corporation, Automotive Holding Group, Instrument Cluster Plant, including on-site leased workers from Securitas, EDS, Bartech and Mays Chemicals, Flint, Michigan. The Department's Notice of determination was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. Workers produced instrumentation displays.
The company reports that workers leased from Interim Physicians, LLC and HSS Material Management were employed on-site at the Flint, Michigan location of Delphi Corporation. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered as leased workers.
Based on these findings, the Department is amending this certification to include workers leased from Interim Physicians, LLC and HSS Material Management working on-site at Delphi Corporation, Automotive Holding Group, Instrument Cluster Plant, currently known as General Motors Corporation, Flint, Michigan.
The amended notice applicable to TA-W-61,226 is hereby issued as follows:
All workers of Delphi Corporation, Automotive Holding Group, Instrument Cluster Plant, currently known as General Motors Corporation, including on-site leased workers from Securitas, EDS, Bartech, Mays Chemicals, Interim Physicians, LLC and HSS Material Management, Flint, Michigan, who became totally or partially separated from employment on or after March 30, 2006 through May 15, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on October 1, 2007, applicable to workers of Delphi Corporation, Automotive Holding Group, Plant 6, including on-site leased workers from Securitas, EDS, Bartech and Mays Chemicals, Flint, Michigan and Delphi Corporation, Automotive Holding Group, Plant 2, including on-site leased workers from Securitas, EDS, Bartech and Mays Chemicals, Flint,
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. Workers at Plant 6 produced automotive air induction products and workers at Plant 2 produced automotive modular reservoir assemblies and sub components.
The company reports that workers leased from Interim Physicians, LLC and HSS Material Management were employed on-site at Plant 6 and Plant 2 of Delphi Corporation. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered as leased workers.
Based on these findings, the Department is amending this certification to include workers leased from Interim Physicians, LLC and HSS Material Management working on-site at Delphi Corporation, Automotive Holding Group, Plant 6, currently known as General Motors Corporation and Delphi Corporation, Automotive Holding Group, Plant 2, currently known as General Motors Corporation.
The amended notice applicable to TA-W-62,069 and TA-W-62,069A is hereby issued as follows:
All workers of Delphi Corporation, Automotive Holding Group, Plant 6, currently known as General Motors Corporation, including on-site leased workers from Securitas, EDS, Bartech, Mays Chemicals, Interim Physicians, LLC and HSS Material Management, Flint, Michigan (TA-W-62,069) and Delphi Corporation, Automotive Holding Group, Plant 2, currently known as General Motors Corporation, including on-site leased workers from Securitas, EDS, Bartech, Mays Chemicals, Interim Physicians, LLC and HSS Material Management, Flint, Michigan (TA-W-62,069A), who became totally or partially separated from employment on or after August 27, 2006 through October 1, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to apply for Worker Adjustment Assistance on February 1, 2010, applicable to workers of Hewlett Packard, Technical Support Call Center, including on-site leased workers from Manpower, Volt, and Adecco, Boise, Idaho. The notice was published in the
At the request of the State Agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in activities related to technical support services.
The company reports that workers leased from Radiant Systems and Kelly Services were employed on-site at the Boise, Idaho location of Hewlett Packard, Technical Support Call Center. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers.
Based on these findings, the Department is amending this certification to include workers leased from Radiant Systems and Kelly Services working on-site at the Boise, Idaho location of Hewlett Packard, Technical Support Call Center.
The amended notice applicable to TA-W-72,846 is hereby issued as follows:
All workers of Hewlett Packard, Technical Support Call Center, including on-site leased workers from Manpower, Volt, Adecco, Radiant Systems, and Kelly Services, Boise, Idaho, who became totally or partially separated from employment on or after October 29, 2008, through February 1, 2012, and all workers in the group threatened with total or partial separation from employment on date of certification through two years from the date of certification, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on October 6, 2009, applicable to workers of Novell, Inc., Provo, Utah. The notice was published in the
At the request of the State Agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in activities related to research, design and technical support for the production of computer software.
The company reports that workers leased from Affiliated Computer Services, Inc., (ACS) were employed on-site at the Provo, Utah location of Novell, Inc. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers.
Based on these findings, the Department is amending this certification to include workers leased from Affiliated Computer Services, Inc., (ACS) working on-site at the Provo, Utah location of Novell, Inc.
The amended notice applicable to TA-W-71,810 issued as follows:
All workers of Novell, Inc., including on-site leased workers from Affiliated Computer Services, Inc., (ACS), Provo, Utah, who became totally or partially separated from employment on or after July 24, 2008, through October 6, 2011, and all workers in the group threatened with total or partial separation from employment on the date of
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Notice of Revised Determination on Reconsideration applicable to workers of Paris Accessories, Inc., including on-site leased workers from Job Connections, New Smithville, Pennsylvania. The Notice of revised determination was issued on May 27, 2010. The Notice was published in the
The company official reports that workers from the New Smithville, Pennsylvania facility also worked at the Allentown, Pennsylvania facility. Further, the workers moved interchangeably between the two facilities.
Based on these findings, the Department is amending this certification to include workers of Paris Accessories, Inc., Allentown, Pennsylvania.
The amended notice applicable to TA-W-71,106 is hereby issued as follows:
All workers of Paris Accessories, Inc., New Smithville, Pennsylvania (TA-W-71,106) and all workers of Paris Accessories, Inc., Allentown, Pennsylvania (TA-W-71,106A) who became totally or partially separated from employment on or after May 27, 2008 through May 27, 2012, and all workers in the group threatened with total or partial separation from employment on or after May 27, 2010 through May 27, 2012, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on March 5, 2010, applicable to workers of Delphi Corporation, a subsidiary of Delphi Holdings, LLC, including on-site leased workers from Securitas, Interim Physicians LLC, EDS, Bartech Group, Mays Chemical Company, Greater Flint Janitorial Services and HSS Material Management Solutions, Flint, Michigan. The notice was published in the
At the request of the State Agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of fuel modules, instrument clusters, and air meters.
The review shows that on May 15, 2007, a certification of eligibility to apply for adjustment assistance was issued for all workers of Delphi Corporation Automotive Holding Group, Flint, Michigan, engaged in the production of instrument clusters, separated from employment on or after March 30, 2006 through May 15, 2009. The notice was published in the
The review also shows that on October 1, 2007, a certification of eligibility to apply for adjustment assistance was issued for all workers of Delphi Corporation Automotive Holding Group, Flint, Michigan, engaged in the production of fuel modules and air meters, separated from employment on or after August 27, 2006 through October 1, 2009. The notice was published in the
In order to avoid overlaps in worker group coverage, the Department is amending the June 4, 2008 impact date established for TA-W-70,988 to read May 16, 2009 for workers producing instrument clusters and October 2, 2009 for workers producing fuel modules and air meters.
Furthermore, the company reports that workers leased from Consumer Energy were employed on-site at the subject firm. The Department has determined that these workers were sufficiently under the control of the subject firm to be considered leased workers.
Based on these findings, the Department is amending this certification to include workers leased from Consumer Energy working on-site at the subject firm.
The amended notice applicable to TA-W-70,988 is hereby issued as follows:
All workers of Delphi Corporation, a subsidiary of Delphi Holdings, LLC, including on-site leased workers from Securitas, EDS, Bartech Group, Mays Chemicals Company, Interim Physicians, LLC and HSS Material Management Solutions, Flint, Michigan, engaged in the production of instrument clusters, who became totally or partially separated from employment on or after May 16, 2009, AND all workers of Delphi Corporation, a subsidiary of Delphi Holdings, LLC, including on-site leased workers of Securitas, EDS, Bartech Group, Mays Chemicals Company, Interim Physicians, LLC, HSS Material Management Solutions, Flint, Michigan, engaged in the production of fuel modules and air meters who became totally or partially separated from employment on or after October 2, 2009, AND all leased workers from Interim Physicians LLC, Greater Flint Janitorial Services, HSS Material Management Solutions and Consumer Energy, working on-site at Delphi Corporation, a subsidiary of Delphi Holdings, LLC, Flint, Michigan, who became totally or partially separated from employment on or after June 4, 2008 through March 5, 2012, and all workers in the group threatened with total or partial separation from employment on March 5, 2010 through March 5, 2012, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on March 11, 2010, applicable to workers of Horton Archery, LLC, formerly known as Wildcomm-Horton Partners, LLC, Tallmadge, Ohio. The Department's notice of determination was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of archery equipment.
Information shows that Horton Manufacturing Company, LLC went into receivership in 2009 and subsequently sold its assets to Wildcomm-Horton Partners, LLC. Later, Wildcomm-Horton Partners, LLC changed its name to Horton Archery, LLC.
Based on these findings, the Department determines that the separated workers were employees of Horton Manufacturing Company, LLC and were not employees of either Wildcomm-Horton Partners, LLC or Horton Archery, LLC.
The intent of the Department's certification is to include all workers of Horton Manufacturing Company, LLC, Tallmadge, Ohio, who were adversely affected by increased imports of archery equipment, and to exclude all other workers.
The amended notice applicable to TA-W-71,269 is hereby issued as follows:
All workers of Horton Manufacturing Company, LLC, Tallmadge, Ohio, who became totally or partially separated from employment on or after June 16, 2008 through March 11, 2012, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended.
In accordance with Section 223 of the Trade Act of 1974, as amended (“Act”), 19 U.S.C. 2273, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance on February 6, 2009, applicable to workers of Cranston Print Works Company, Webster Division, Webster, Massachusetts. The Department's Notice of determination was published in the
At the request of the company official, the Department reviewed the certification for workers of the subject firm. The company official states that the Cranston, Rhode Island facility operated in conjunction with the Webster, Massachusetts facility and that the worker separations at the Cranston, Rhode Island facility is due to the reduced production of printed cotton and cotton blend fabrics at the Webster, Massachusetts facility.
Based on these findings, the Department is amending this certification to include workers from Cranston Print Works Company, Corporate Offices, Cranston, Rhode Island.
Workers at Cranston Print Works Company, Webster Division, Webster, Massachusetts, were under a certification that expired on August 22, 2008 (TA-W-59,774). Workers at Cranston Print Works Company, Corporate Offices, Cranston, Rhode Island were not covered by the certification. Because the date of the petition is October 9, 2008, the earliest possible impact date of the amended certification applicable to workers of Cranston Print Works Company, Corporate Offices, Cranston, Rhode Island is October 9, 2007.
Workers at Cranston Print Works Company, Corporate Offices, Cranston, Rhode Island, who are separated from employment between March 10, 2009 and June 1, 2012 are eligible to apply for Trade Adjustment Assistance (TAA) under TA-W-73,788. Because workers cannot be covered by two certifications at the same time, the period of the amended certification ends on March 9, 2009.
The amended notice applicable to TA-W-64,198 is hereby issued as follows:
All workers of Cranston Print Works Company, Webster Division, Webster, Massachusetts (TA-W-64,198), who became totally or partially separated from employment on or after August 23, 2008, through February 6, 2011, and all workers of Cranston Print Workers Company, Corporate Offices, Cranston, Rhode Island (TA-W-64,198A), who became totally or partially separated from employment on or after October 9, 2007, through March 9, 2009, are eligible to apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, as amended, and are also eligible to apply for alternative trade adjustment assistance.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA-W) number issued during the period of June 28, 2010 through July 2, 2010.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles
(B) Imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) Imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) Imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) The increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Under Section 222(a)(2)(B), all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) There has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) The shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) The acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(c) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) An affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) An affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) The petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) Notice of an affirmative determination described in subparagraph (1) is published in the
(3) The workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) Notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(c) (downstream producer for a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criterion under paragraph (a)(1), or (b)(1), or (c)(1) (employment decline or threat of separation) of section 222 has not been met.
The investigation revealed that the criteria under paragraphs(a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
I hereby certify that the aforementioned determinations were issued during the period of June 28, 2010 through July 2, 2010
Petitions have been filed with the Secretary of Labor under Section 221 (a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221 (a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than July 26, 2010.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than July 26, 2010.
Copies of these petitions may be requested under the Freedom of Information Act. Requests may be submitted by fax, courier services, or mail, to FOIA Disclosure Officer, Office of Trade Adjustment Assistance (ETA), U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 or to
By application dated March 11, 2010, the President of Woodworkers, Local Lodge W536, of the International Association of Machinists and Woodworkers requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA), applicable to workers and former workers of the subject firm. The determination was issued on February 19, 2010, and the Department's Notice of determination was published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) if in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The negative determination was based on the finding that there had been no increase in imports by the company or by the company's customers of the articles produced by the subject firm; that there was no shift of production or acquisition abroad of the articles produced by the subject firm; that aggregate imports of articles like and directly competitive with those produced by the subject firm had declined absolutely and also relative to domestic consumption of those products; and that the separations at the subject facility were not the result of loss of business by the subject firm as either a supplier of components to, or a downstream finisher of articles produced by, a customer that employed a worker group that is currently eligible to apply for TAA.
In the request for reconsideration, the petitioner stated that the workers of the subject firm should be eligible for TAA because the subject firm is “in direct competition to major timber firms in Canada [and] a portion of that timber finds its way across the border and into the U.S. market.” The petitioner also alleged that “During the pertinent time period Stimson lumber has also marketed Hampton lumber under the Stimson label” and that Hampton Lumber (certification issued on September 17, 2009; TA-W-72,129) therefore “is an upstream supplier of Stimson Lumber.”
During the initial investigation, the Department received an attestation from a company official that the subject firm did not shift to a foreign country or acquire from a foreign country softwood dimensional lumber (or like or directly competitive articles) and did not increase its imports of softwood dimensional lumber (or like or directly competitive articles).
During the initial investigation, the Department conducted a customer survey (which accounted for over 65% of the subject firm's declining sales and/or production) that showed that the surveyed customers did not increase their imports of softwood dimensional lumber (or like or directly competitive articles).
During the initial investigation, the Department obtained data from the U.S. Census Bureau, the U.S. Department of Commerce, and the U.S. International Trade Commission that showed that aggregate imports of softwood dimensional lumber declined both absolutely and relative to domestic consumption.
To be eligible for a secondary certification, the subject firm must provide a component part for, or be downstream finisher for, an article produced by the firm that employed a worker group that is currently eligible to apply for TAA.
The petitioner's assertion that the subject firm markets some of the products of Hampton Lumber cannot be a basis for secondary certification because the lumber at issue is not a component part of lumber that was the basis of the certification of TA-W-72,129 and because the marketing of the Hampton Lumber does not constitute downstream production.
The petitioner did not supply facts not previously considered; nor provide additional documentation indicating that there was either (1) a mistake in the determination of facts not previously considered or (2) a misinterpretation of facts or of the law justifying reconsideration of the initial determination.
After careful review of the request for reconsideration, the Department determines that 29 CFR 90.18(c) has not been met.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
Mine Safety and Health Administration (MSHA), Labor.
Notice of petitions for modification of existing mandatory safety standards.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification filed by the parties listed below to modify the application of existing mandatory safety standards published in Title 30 of the Code of Federal Regulations.
All comments on the petitions must be received by the Office of Standards, Regulations and Variances on or before August 16, 2010.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
1.
2.
3.
4.
MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments. Individuals who submit comments by hand-delivery are required to check in at the receptionist desk on the 21st floor.
Individuals may inspect copies of the petitions and comments during normal business hours at the address listed above.
Barbara Barron, Office of Standards, Regulations and Variances at 202-693-9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary determines that: (1) An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or (2) that the application of such standard to such mine will result in a diminution of safety to the miners in such mine. In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
Mine Safety and Health Administration, Labor.
Notice; correction.
The Mine Safety and Health Administration (MSHA) published a document in the
Barbara Barron, 202-693-9447 or Roslyn Fontaine, 202-693-9475.
In the
Pursuant to Section 223 of the Trade Act of 1974, as amended, an investigation was initiated in response to a petition filed on February 18, 2010 on behalf of workers of the subject firm.
On June 8, 2010, the Department issued a Notice of Termination of Investigation, stating that the petitioning group is part of the worker group covered by an on-going investigation (TA-W-72,851). On June 23, 2010, the Department issued a certification under TA-W-72,851 that did not include the worker group covered by TA-W-73,488.
To protect the interests of the petitioning group, the Department is revising the Notice of Termination and will conduct an investigation to determine whether workers of the subject firm are eligible to apply for Trade Adjustment Assistance.
Mine Safety and Health Administration, Labor.
Solicitation for Grant Applications.
The U.S. Department of Labor, Mine Safety and Health Administration (MSHA), is making $500,000 available in grant funds for educational and training programs to help identify, avoid, and prevent unsafe working conditions in and around mines. The focus of these grants for the fiscal year (FY) 2010 will be on training and training materials for mine emergency preparedness and mine emergency prevention for all underground mines. Applicants for the grants may be States and nonprofit (private or public) entities. MSHA could award as many as 10 separate grants with a 12-month period of performance. The amount of each individual grant will be at least $50,000.00. This notice contains all of the necessary information needed to apply for grant funding.
The closing date for applications will be August 18, 2010 (no later than 11:59 p.m. EDT). MSHA will award grants on or before September 30, 2010.
Applications for grants submitted under this competition must be submitted electronically using the Government-wide site at
Any questions regarding this solicitation for grant applications (SGA 10-3BS) should be directed to Robert Glatter at
This solicitation provides background information and the critical elements required of projects funded under the solicitation. It also describes the application submission requirements, the process that eligible applicants must use to apply for funds covered by this solicitation, and how grantees will be selected. Further information regarding submitting the grant application electronically is listed in Section IV.C., Submission Date, Times, and Addresses. This solicitation consists of eight parts:
• Part I provides background information on the Brookwood-Sago grants.
• Part II describes the size and nature of the anticipated awards.
• Part III describes the qualifications of an eligible applicant.
• Part IV provides information on the application and submission process.
• Part V explains the review process and rating criteria that will be used to evaluate applications.
• Part VI provides award administration information.
• Part VII contains MSHA contact information.
• Part VIII addresses Office of Management and Budget information collection requirements.
Responding to several coal mine disasters, Congress enacted the Mine Improvement and New Emergency Response Act of 2006 (MINER Act). Section 14 of the MINER Act requires the Secretary of Labor (Secretary) to establish a discretionary competitive grant program called the Brookwood-Sago Mine Safety Grants (Brookwood-Sago grants). This program provides funding to educate and train miners to better identify, avoid, and prevent unsafe working conditions in and around mines. This program will use grant funds to establish and implement education and training programs or to create training materials and programs. The MINER Act requires the Secretary to give priority to mine safety demonstrations and pilot projects with broad applicability. It also mandates that the Secretary emphasize programs
MSHA priorities for the FY 2010 funding of the Brookwood-Sago grants will focus on training and training materials for mine emergency preparedness and mine emergency prevention for all underground mines. MSHA expects Brookwood-Sago grantees to develop training materials or to develop and provide mine safety and health training and/or educational programs, recruit miners and mine operators for the training, and conduct and evaluate the training on one of the MSHA-selected priorities. Grantees are also expected to conduct follow-up evaluations with people trained by their program. The evaluation will focus on determining how effective their training was in either reducing hazards or improving skills for the selected training topics and in improving the conditions in mines. Grantees must also cooperate fully with MSHA evaluations of the program. If the Brookwood-Sago applicant is not the entity operating the MSHA-approved State training grant, MSHA expects the applicant to contact the State grantee and coordinate any proposed training or educational program with the applicable State in order not to duplicate any training or educational program offered. An applicant's proposed area for the grant may cover more than one State.
MSHA is providing $500,000 total for the FY 2010 Brookwood-Sago grant program, which could be divided into as many as 10 separate grants. The amount of each individual grant will be at least $50,000.00. Applicants requesting less than $50,000 or more than $500,000 will not be considered for funding.
The period of performance will be 12 months from the date of execution of the grant documents. This performance period must include all necessary implementation and start-up activities as well as follow-up for performance outcomes. A timeline clearly detailing these required grant activities and their expected completion dates must be included in the grant application. MSHA may approve a request for a no-cost extension to grantees for an additional period of time based on the success of the project and other relevant factors.
Applicants for the grants may be States and nonprofit (private or public) entities. Eligible entities may apply for funding independently or in partnership with other eligible organizations. For partnerships, a lead organization must be identified.
Applicants other than States and State-supported or local government-supported institutions of higher education will be required to submit evidence of nonprofit status, preferably from the Internal Revenue Service. A nonprofit entity as described in 26 U.S.C. 501(c)(4), which engages in lobbying activities, is not eligible for a grant award.
Cost-sharing or matching of funds is not required for eligibility. The leveraging of public and/or private resources to achieve project sustainability, however, is highly encouraged and may be awarded up to 10 application evaluation points.
Since October 1, 2003, every applicant for a Federal grant funding opportunity is required to include a DUNS number with its application. An applicant's DUNS number is to be entered into Block 8 of Standard Form (SF) 424. The DUNS number is a nine-digit identification number that identifies business entities uniquely. There is no charge for obtaining a DUNS number. To obtain a DUNS number, call 1-866-705-5711 or access the following Web site:
After receiving a DUNS number, all grant applicants must also register as a vendor with the Central Contractor Registration (CCR) through the Web site
The government generally is prohibited from providing direct Federal financial assistance for inherently religious activities.
Applications that are lacking any of the required elements or do not follow the format prescribed in IV.B will not be reviewed.
Applications received after the deadline will not be reviewed unless it is determined to be in the best interest of the Government.
This announcement includes all information and links needed to apply for this funding opportunity. The full application is available through the Grants.gov Web site,
Each grant application must address mine emergency preparedness or mine emergency prevention for underground mines. Applicants must submit a separate application for each topic. The application must consist of three separate and distinct sections. The three required sections are:
• Section 1—Project Financial Plan and Forms (No page limit).
• Section 2—Project Summary (Not to exceed 2 pages).
• Section 3—Technical Proposal (Not to exceed 10 pages). Illustrative material can be submitted as an attachment.
The following are mandatory requirements for each section.
This section contains the forms and budget section of the application. The Project Financial Plan will not count against the application page limits. A person with authority to bind the applicant must sign the application and forms. Applications submitted electronically through Grants.gov do not need to be signed manually; the form will automatically affix an electronic signature for the authorized person identified.
(a) Completed SF 424, “Application for Federal Assistance.” This form is part of the application package on Grants.gov and also is available at
(b) Completed SF 424A, “Budget Information—Non-Construction Programs.” This form is part of the application package on Grants.gov and also is available at
(c) Budget Narrative. The applicant must provide a concise narrative explaining the request for funds. The budget narrative should separately attribute the Federal funds and leveraged resources to each of the activities specified in the technical proposal and it should discuss precisely how any administrative costs support the project goals. Indirect cost charges, which are considered administrative costs, must be supported with a copy of an approved Indirect Cost Rate Agreement. Indirect Costs are those costs that are not readily identifiable with a particular cost objective but nevertheless are necessary to the general operation of an organization,
If applicable, the applicant must provide a statement about its program income. Program income is gross income earned by the grantee directly generated by a supported activity, or earned as a result of the award.
Any leveraged resources should not be listed on the SF 424 or SF 424A Budget Information Form, but must be described in the budget narrative and in the technical proposal of the application (as described in Part IV.B.3(d) of this SGA). The amount of Federal funding requested for the entire period of performance must be shown on the SF 424 and SF 424A Budget Information Form. Note: Grantees will be responsible for obtaining any beverage resources proposed in their applications. Failure to do so may result in the disallowance and required return of funds in the amount of the proposed beverage.
(d) Completed SF 424B, “Assurances, Non-Construction Programs.” Each applicant for these grants must certify compliance with a list of assurances. This form is part of the application package on www.Grants.gov and also is available at
(e) Supplemental Certification Regarding Lobbying Activities Form. If any funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the making of a grant or cooperative agreement, the applicant shall complete and submit SF-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions. This form is part of the application package on
(f) Non-profit status. Applicants must provide evidence of non-profit status, preferably from the Internal Revenue Service (IRS), if applicable. (This requirement does not apply to State and local government-supported institutions of higher education.)
(g) Accounting System Certification. An organization that receives less than $1 million annually in Federal grants must attach a certification stating that the organization (directly or through a designated qualified entity) has a functioning accounting system that meets the criteria below. The certification should attest that the organization's accounting system provides for the following:
(1) Accurate, current and complete disclosure of the financial results of each federally sponsored project.
(2) Records that identify adequately the source and application of funds for federally sponsored activities.
(3) Effective control over and accountability for all funds, property and other assets.
(4) Comparison of outlays with budget amounts.
(5) Written procedures to minimize the time elapsing between transfers of funds.
(6) Written procedures for determining the reasonableness, allocability, and allowability of cost.
(7) Accounting records, including cost accounting records that are supported by source documentation.
(h) Attachments. The application may include attachments such as resumes of key personnel or position descriptions, exhibits, information on prior government grants, and signed letters of commitment to the project.
The project summary is a short one-to-two page abstract that succinctly summarizes the proposed project and provides information about the applicant organization. The project summary must include the following information:
(a) Applicant. Provide the organization's full legal name and address.
(b) Project Director. The project director is the person who will be responsible for the day-to-day operation and administration of the program. Provide the name, title, street address and mailing address (if it is different from the organization's street address), telephone and fax numbers, and e-mail address of the project director.
(c) Certifying Representative. The certifying representative is the official in the organization who is authorized to enter into grant agreements. Provide the name, title, street address and mailing address if it is different from the organization's street address, telephone and fax numbers, and e-mail address of the certifying representative.
(d) Funding requested. List how much Federal funding is being requested. If the organization is contributing non-Federal resources, also list the amount of non-Federal resources and the source of the funds.
(e) Grant Topic. List the grant topic and the location and number of miners that the organization has selected to train or describe the training materials to be created with these funds.
(f) Summary of the Proposed Project. Write a brief program summary of the
(g) Applicant Background. Describe the applicant, including its mission, and a description of its membership, if any. Provide an organizational chart (the chart may be included as a separate page which will not count toward the page limit).
The technical proposal must demonstrate the applicant's capabilities to plan and implement a project or create educational materials to meet the objectives of this solicitation. MSHA's focus for this SGA is on training miners and developing training materials for mine emergency preparedness and mine emergency prevention for underground mines. MSHA has two program goals that will be considered indicators of the success of the program as a whole. The following table explains the types of data grantees must provide and their relationship with the Agency's program goals and performance measures for the Brookwood-Sago grants.
The technical proposal narrative is not to exceed 10 single-sided pages, double spaced, 12-point font, and must contain the following sections: Program Design, Overall Qualifications of the Applicant, Impact or Outcomes and Evaluation, and Leveraging of Funds. Any pages over the 10-page limit will not be reviewed. Major sections and sub-sections of the proposal should be divided and clearly identified. MSHA will review and rate the technical proposal in accordance with the selection criteria specified in Part V.
(a) Program Design.
(1)
(2)
(i)
(ii)
Any commercially-developed training materials the applicant proposes to use in its training must undergo an MSHA review before being used.
(iii)
(iv)
(b) Overall Qualifications of the Applicant.
(1)
Lack of past experience with Federal grants is not a determining factor, but an applicant should show a successful experience relevant to the opportunity offered in the application. Such experience could include staff members' experience with other organizations.
(2)
(3)
(c) Impact or Outcomes and Evaluations.
There are three types of evaluations that must be conducted. First, describe plans to evaluate the training sessions and/or training materials. Second, describe plans to evaluate the applicant's progress in accomplishing the grant work activities listed in the application. This includes comparing planned and actual accomplishments. Discuss who is responsible for taking corrective action if plans are not being met. Third, describe plans to assess the effectiveness of the training the applicant is conducting or the training materials. This will involve following up with an evaluation, or on-site review, if feasible, of people who attended the training to find out what changes were made to abate hazards and improve workplace conditions, or to incorporate the training in the workplace. For training materials, an evaluation of individuals on the clarity of the presentation, organization, and the information on the subject matter and whether they would use training materials is required. Include timetables for follow-up and for submitting a summary of the assessment results to MSHA.
(d) Leveraging of Funds.
Leveraged resources are cash or in-kind contributions obtained from sources other than the Federal government devoted to advancing the strategies described in the applicant's proposal. Applicants must include a description of any non-Federal contribution or commitments, including the source of funds and the estimated amount.
The closing date for receipt of applications under this announcement is August 18, 2010 (no later than 11:59 p.m. EDT). Grant applications must be submitted electronically through the Grants.gov Web site. The Grants.gov site provides all the information about submitting an application electronically through the site as well as the hours of operation. Interested parties can locate the downloadable application package by the CFDA number 17.603.
Applications received by Grants.gov are electronically date and time stamped. An application must be fully uploaded and submitted (and must be date and time stamped by the Grants.gov system) before the application deadline date. Once an interested party has submitted an application, Grants.gov will notify the interested party with an automatic notification of receipt that contains a Grants.gov tracking number. This notification indicates receipt by Grants.gov only, not receipt by MSHA. MSHA then will retrieve the application from Grants.gov and send a second notification to the interested party by e-mail.
The Brookwood-Sago grants are not subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.” MSHA, however, reminds applicants that if they are not operating MSHA-approved State training grants, contact the State grantees and coordinate any training or educational program in order not to duplicate any training or educational program offered. Information about each state grant and the entity operating the state grant is provided online at:
MSHA will determine whether costs are allowable under the applicable Federal cost principles and other conditions contained in the grant award.
Grant funds may be spent on conducting training, conducting outreach and recruiting activities to increase the number of miners and employers participating in the program, developing educational materials, and on necessary expenses to support these activities. Allowable costs are determined by the applicable federal costs principles identified in Part VI.B. Program income earned during the award period shall be retained by the recipient, added to funds committed to the award, and used for the purposes and under the conditions applicable to the use of the grant funds.
Grant funds may not be used for the following activities under this grant program:
(a) Any activity inconsistent with the goals and objectives of this SGA.
(b) Training on topics that are not targeted under this SGA;
(c) Duplicating training or services offered by MSHA or any MSHA State grant under section 503 of the Federal Mine Safety and Health Act of 1977;
(d) Purchasing any equipment unless pre-approved and in writing by the MSHA grant officer;
(e) Administrative costs that exceed 15% of the total grant budget; and
(f) Any pre-award costs.
Unallowable costs also include any cost determined by MSHA as not allowed according to the applicable cost principles or other conditions in the grant.
MSHA will screen all applications to determine whether all required proposal elements are present and clearly identifiable. Those that do not comply with mandatory requirements will not be evaluated. The technical panels will review grant applications against the criteria listed below on the basis of 100 maximum points. Up to 10 additional points may be given for leveraging non-Federal resources.
(a) Problem Statement/Need for Funds. (3 points)
The proposed training and education program or training materials must address the recognition and prevention of safety and health hazards for mine emergency preparedness and safety for mines.
(b) Quality of the Project Design. (25 points)
(1) The proposal to train miners and/or employers clearly estimates the number to be trained and clearly identifies the types of miners and employers to be trained.
(2) If the proposal contains a train-the-trainer program, the following information must be provided:
• What ongoing support the grantee will provide to new trainers;
• The number of individuals to be trained as trainers;
• The estimated number of courses to be conducted by the new trainers;
• The estimated number of students to be trained by these new trainers and a description of how the grantee will obtain data from the new trainers documenting their classes and student numbers if conducted during the grant period.
(3) The work plan activities and training are described.
• The planned activities and training are tailored to the needs and levels of the miners and employers to be trained. Any special constituency to be served through the grant program is described, e.g., smaller mines, limited English proficiency miners. Organizations proposing to develop materials in languages other than English also will be required to provide an English version of the materials.
• If the proposal includes developing training materials, the work plan must include time during development for MSHA to review the educational materials for technical accuracy and suitability of content. If commercially-developed training products will be used for a training program, applicants also should plan for MSHA to review the materials before using the products in their grant programs.
• The utility of the educational materials is described.
• The outreach or process to find miners or trainees to receive the training is described.
(c) Replication. The extent a project will be replicated and the potential for the project to serve a variety of miners or mine sites. (4 points)
(d) Innovativeness. The originality and uniqueness of the approach used. (3 points)
(e) MSHA's Performance Goals. The extent the proposed project will contribute to MSHA's performance goals. (5 points)
(a) The budget presentation is clear and detailed. (15 points)
• The budgeted costs are reasonable.
• No more than 15% of the total budget is for administrative cost.
• The budget complies with Federal cost principles (which can be found in the applicable Office of Management and Budget (OMB) Circulars and with MSHA budget requirements contained in the grant application instructions).
(b) The application demonstrates that the applicant has strong financial management and internal control systems. (5 points)
(a) The applicant has administered, or will work with an organization that has administered, a number of different Federal and/or State grants in the past five years. The applicant may demonstrate this experience by having project staff that has experience administering Federal and/or State grants in the past five years. (6 points)
(b) The applicant applying for the grant demonstrates experience with mine safety and health teaching or providing mine safety and health educational programs.
Applicants that do not have prior experience in providing mine safety and health training to miners or employers may partner with an established mine safety and health organization to acquire mine safety and health expertise. (13 points)
• Project staff has experience in mine safety and health, the specific topic chosen, and/or in training miners.
• Project staff has experience in recruiting, training and working with the population the organization proposes to serve.
• Applicant has experience in designing and developing training materials for a mining program.
• Applicant has experience in managing educational programs.
(c) Applicant demonstrates internal control and management oversight of the project. (6 points)
The proposal should include provisions for evaluating the organization's progress in accomplishing the grant work activities and accomplishments, evaluating training sessions, and evaluating the program's effectiveness and impact to determine if the safety and health training and services provided resulted in workplace change and improved workplace conditions. The proposal should include a plan to follow up with trainees to determine the impact the program has had in abating hazards and reducing miner injuries and illnesses.
MSHA will award up to 10 additional rating points to applications that include non-Federal resources that expand the size and scope of project-related activities. To be eligible for the additional points, the applicant must list the resources, the nature of programmatic activities anticipated and any partnerships, linkages, or coordination of activities, cooperative funding, etc., including the monetary value of such contributions.
A technical panel will rate each complete application against the criteria described in this SGA. One or more applicants may be selected as grantees on the basis of the initial application submission, or a minimally acceptable number of points may be established. MSHA may request final revisions to the applications, and then evaluate the revised applications. MSHA may consider any information that comes to its attention in evaluating the applications.
The panel recommendations are advisory in nature. The Deputy Assistant Secretary of Labor for Mine Safety and Health (Deputy Assistant Secretary) will make a final selection determination based on what is most advantageous to the Government, considering factors such as panel findings, geographic presence of the applicants or the areas to be served, Agency priorities, and the best value to the government, cost and other factors. The Deputy Assistant Secretary's determination for award under this SGA is final.
Announcement of these awards is expected to occur by September 17, 2010. The grant agreement will be signed no later than September 30, 2010.
Organizations selected as potential grant recipients will be notified by a representative of the Deputy Assistant Secretary, usually the Grant Officer or his staff. An applicant whose proposal is not selected will be notified in writing. The fact that an organization has been selected as a potential grant recipient does not necessarily constitute approval of the grant application as submitted (revisions may be required).
Before the actual grant award, MSHA may enter into negotiations with the potential grant recipient concerning such matters as program components, staffing and funding levels, and administrative systems. If the negotiations do not result in an acceptable submittal, the Assistant Secretary reserves the right to terminate the negotiations and decline to fund the proposal.
All grantees will be subject to applicable Federal laws and regulations (including provisions of appropriations law) and applicable OMB Circulars. The grants awarded under this competitive grant program will be subject to the following administrative standards and provisions, if applicable:
• 29 CFR part 2, subpart D, Equal Treatment for Religious Organizations.
• 29 CFR parts 31, 32, 35 and 36, Nondiscrimination.
• 29 CFR part 93, Restrictions on Lobbying.
• 29 CFR part 94, Drug-free Workplace.
• 29 CFR part 95, Uniform Grant Requirements for Nonprofit Organizations.
• 29 CFR parts 96 and 99, Audits.
• 29 CFR part 97, Uniform Grant Requirements for States.
• 29 CFR part 98, Debarment and Suspension.
• 2 CFR part 175, Award Term for Trafficking in Persons.
• 2 CFR part 220, Cost Principles for Educational Institutions.
• 2 CFR part 225, Cost Principles for State and Local Governments.
• 2 CFR part 230, Cost Principles for Other Nonprofit Organizations.
• Federal Acquisition Regulation (FAR) Subpart 31.2, Cost Principles for Commercial Organizations. (Codified at 48 CFR 31.2).
Administrative costs for these grants may not exceed 15%. Except as specifically provided, MSHA's acceptance of a proposal or MSHA's award of Federal funds to sponsor any programs does not constitute a waiver of any grant requirement or procedure. For example, if an application identifies a specific sub-contractor to provide certain services, the MSHA award does not provide a basis to sole-source the procurement (to avoid competition).
MSHA will review all grantee-produced educational and training materials for technical accuracy and suitability of content during development and before final publication. MSHA also will review training curricula and purchased training materials for technical accuracy and suitability of content before the materials are used. Grantees developing training materials must follow all copyright laws and provide written certification that their materials are free from copyright infringements.
When grantees produce training materials, they must provide copies of completed materials to MSHA before the end of the grant period. Completed materials should be submitted to MSHA in hard copy and in digital format (CD-ROM/DVD) for publication on the MSHA Web site. Two copies of the materials must be provided to MSHA. Acceptable formats for training materials include Microsoft XP Word, PDF, PowerPoint, and any other format agreed upon by MSHA.
As listed in 29 CFR 95.36, the Department of Labor reserves a royalty-free, nonexclusive, and irrevocable right to reproduce, publish, or otherwise use for Federal purposes any work produced under a grant, and to authorize others to do so. Grantees must agree to provide the Department of Labor a paid-up, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use for Federal purposes all products developed, or for which ownership was purchased, under an award. Such products include, but are not limited to, curricula, training models, technical assistance products, and any related materials. Such uses include, but are not limited to, the right to modify and distribute such products worldwide by any means, electronic, or otherwise.
All approved grant-funded materials developed by a grantee shall contain the following disclaimer: “This material was produced under grant number XXXXX from the Mine Safety and Health Administration, U.S. Department of Labor. It does not necessarily reflect the views or policies of the U.S. Department of Labor, nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.”
When issuing statements, press releases, request for proposals, bid solicitations, and other documents describing projects or programs funded in whole or in part with Federal money, all grantees receiving Federal funds must clearly state:
(a) The percentage of the total costs of the program or project that will be financed with Federal money;
(b) The dollar amount of federal financial assistance for the project or program; and
(c) The percentage and dollar amount of the total costs of the project or program that will be financed by non-governmental sources.
The USDOL or the MSHA logo may be applied to the grant-funded material including posters, videos, pamphlets, research documents, national survey results, impact evaluations, best practice reports, and other publications. The grantees must consult with MSHA on whether the logo may be used on any such items prior to final draft or final preparation for distribution. In no event shall the USDOL or the MSHA logo be placed on any item until MSHA has given the grantee written permission to use either logo on the item.
Grantees are required by Departmental regulations to submit financial and project reports, as described below, each calendar quarter. All reports are due no later than 30 days after the end of the calendar quarter and shall be submitted to MSHA. Grantees also are required to submit final reports 90 days after the end of the grant period.
(a) Financial Reports. The grantee shall submit financial reports on a quarterly basis.
(b) Technical Project Reports. After signing the agreement, the grantee shall submit technical project reports to MSHA at the end of each calendar quarter. Technical project reports provide both quantitative and
Between reporting dates, the grantee shall immediately inform MSHA of significant developments and/or problems affecting the organization's ability to accomplish work.
(c) Final Reports. At the end of the grant period, each grantee must provide a final financial report, a summary of its technical project reports, and an evaluation report.
Any information submitted in response to this SGA will be subject to the provisions of the Freedom of Information Act, as appropriate.
Any questions regarding this solicitation for grant applications (SGA 10-3BS) should be directed to Robert Glatter at
This SGA requests information from applicants. This collection of information is approved under OMB Control No. 1225-0086 (expires September 30, 2010).
In accordance with the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless such collection displays a valid OMB control number. Public reporting burden for the grant application is estimated to average 20 hours per response, for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Each recipient who receives a grant award notice will be required to submit nine progress reports to MSHA. Each report will take approximately five hours to prepare.
Send comments regarding the burden estimated or any other aspect of this collection of information, including suggestions for reducing this burden, to the OMB Desk Officer for MSHA, Office of Management and Budget Room 10235, Washington DC 20503 and MSHA, electronically to Robert Glatter at
This information is being collected for the purpose of awarding a grant. The information collected through this “Solicitation for Grant Applications” will be used by the Department of Labor to ensure that grants are awarded to the applicant best suited to perform the functions of the grant. Submission of this information is required in order for the applicant to be considered for award of this grant. Unless otherwise specifically noted in this announcement, information submitted in the respondent's application is not considered to be confidential.
30 U.S.C. 965.
The Board of Directors (“Board”) of the Legal Services Corporation will meet
Legal Services Corporation, 3333 K Street, NW., Washington, DC 20007, 3rd Floor Conference Center.
For all meetings and portions thereof open to public observation, members of the public that wish to listen to the proceedings may do so by following the telephone call-in directions given below. You are asked to keep your telephone muted to eliminate background noises. From time to time the Chairman may solicit comments from the public.
• Call toll-free number: 1-(866) 451-4981;
• When prompted, enter the following numeric pass code: 5907707348;
• When connected to the call, please
Closed. A portion of the meeting of the Board of Directors may be closed to the public pursuant to a vote of the Board so the Board can consider and perhaps act on the recommendation of the Search Committee for LSC President (“Search Committee”) regarding selection of an executive search recruiter. This closure will be authorized by the relevant provisions of the Government in the Sunshine Act [5 U.S.C. 552b(c)(4) and (6)] and LSC's implementing regulation 45 CFR 1622.5(c)
A
Open Session
1. Approval of the agenda.
2. Consider and act on
3. Public comment.
4. Consider and act on recommendation of the Search Committee for LSC President regarding selection of an executive search recruiter.
5. Consider and act on other business.
6. Consider and act on motion to adjourn meeting.
Kathleen Connors, Executive Assistant to the President, at (202) 295-1500. Questions may be sent by electronic mail to
Upon request, meeting notices will be made available in alternate formats to accommodate visual and hearing impairments. Individuals who have a disability and need an accommodation to attend the meeting may notify Kathleen Connors at (202) 295-1500 or
9 a.m., Wednesday, July 21, 2010.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Closed.
1. Consideration of Supervisory Activities. Closed pursuant to the following exemptions: (8), (9)(A)(ii) and (9)(B).
Mary Rupp, Secretary of the Board, Telephone: 703-518-6304.
National Credit Union Administration.
Notice; amendment of systems of records.
Pursuant to the Privacy Act of 1974, notice is given that the National Credit Union Administration (NCUA) is revising its Privacy Act Systems of Records (SOR) Notice. As part of its periodic review of agency systems of records, NCUA proposes to update and revise its SOR Notice. The review identified several changes requiring revision to the SOR Notice including: Changes in recordkeeping practices, agency organizational changes, a system name change, and minor changes to routine uses. No new exemptions from provisions of the Privacy Act of 1974 were required. The revisions reflect the changes, clarify, and update the SOR Notice.
Sheila A. Albin, Associate General Counsel for Operations & Senior Agency Official for Privacy, or Linda Dent, Staff Attorney, Division of Operations, Office of General Counsel at the National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314, or telephone: (703) 518-6540.
The Privacy Act of 1974 requires,
NCUA is making a few changes to existing systems to better describe, correct, and update information. For example, system of records NCUA-3 includes additional description of the system's purpose and routine uses. System of records NCUA-14 is renamed to reflect a change in the system vendor, Appendix B is revised to reflect changes in the states for which each regional office has jurisdiction.
With these changes, NCUA's revised SOR Notice, along with the appendices, are published in their entirety below.
1. Employee Suitability and Security Investigations Containing Adverse Information.
2. Grievance Records.
3. Payroll Records System.
4. Travel Advance and Voucher Information System.
5. Unofficial Personnel and Employee Development/Correspondence Records.
6. Emergency Information (Employee) File.
7. Employee Injury File.
8. Investigative Reports Involving Any Crime, Suspected Crime or Suspicious Activity Against a Credit Union.
9. Freedom of Information Act and Privacy Act Requests and Invoices.
10. Liquidating Credit Union Records.
11. Office of Inspector General (OIG) Investigative Records.
12. Consumer Complaints Against Federal Credit Unions.
13. Litigation Case Files.
14. J.P.Morgan Chase PaymentNet.
15. Contract Employee Pay and Leave Records.
16. Leave Transfer Files.
17. Personal Identity Verification Files.
Employee Suitability and Security Investigations Containing Adverse Information.
Office of Human Resources, National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428.
NCUA employees on whom a routine Office of Personnel Management (OPM) background investigation has been conducted, the results of which contain adverse information.
Arrest records and/or information on moral character, integrity, or loyalty to the United States.
Records maintained pursuant to OPM requirements. A separate notice is published because these records are maintained separately to provide extraordinary safeguards against unwarranted access and disclosures.
The information in this system of records is used to assist in the determination of the suitability of the effected individual for initial or continued NCUA employment, or other necessary action.
(1) Records are reviewed by the NCUA Security Officer (the Director of Human Resources). If the records are determined to be of a substantive nature, they are referred to the appropriate Associate Regional Director or Office Director for whatever action, if any, is deemed necessary. (2) Standard routine uses as set forth in Appendix A.
Records are maintained on paper hard copy.
Records are indexed by name.
Records are maintained in a locked file cabinet accessible only to the Security Officer and his/her designated assistant.
If the investigation is favorable to the employee, the record is destroyed. If the investigation uncovers adverse information, the record is held for two years.
Security Officer, Office of Human Resources, National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428.
An individual may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the system manager listed above. If there is no record on the individual, the individual will be so advised.
Upon request, the system manager will set forth the procedures for gaining access to available records.
Requests to amend or correct a record should be directed to the system manager listed above. Requesters should also reasonably identify the record, specify the information they are contesting, state the corrective action sought and the reasons for the correction, along with supporting justification showing why the record is not accurate, timely, or complete.
OPM Security Investigations Index, FBI headquarters investigative files, fingerprint index of arrest records, Defense Central Index of Investigations, employers within the last five years, listed references, and personal associates, school registrars and responsive law enforcement agencies.
In addition to any exemption to which this system is subject by Notices published by or regulations promulgated by the OPM, the system is subject to a specific exemption pursuant to 5 U.S.C. 552a(k)(5) to the extent that disclosures would reveal a source who furnished information under an express promise of confidentiality, or prior to September 27, 1975, under an express or implied promise of confidentiality.
Grievance Records.
Office of Human Resources, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
Current or former Federal employees who have submitted grievances with NCUA in accordance with part 771 of the OPM's regulations. These case files contain all documents related to the grievance, including statements of witnesses, reports of interviews and hearings, examiners' findings and recommendations, a copy of the original and final decision with related correspondence and exhibits.
5 U.S.C. 1302, 3301, and 3302, E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; E.O. 10987; 3 CFR 1959-1963 Comp., p. 519.
The information in this system is used in the Agency's formal grievance process.
(1) Information is used by the appropriate Federal, State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order where the disclosing agency becomes aware of an indication of a violation or potential violation of civil or criminal law or regulations. (2) Information is used by any source from which additional information is requested in the course of processing a grievance to the extent necessary to identify the individual, inform the source of the purpose(s) of the request, and identify the type of information requested. (3) Information is used by a Federal agency in response to its request in connection with the hiring or retention of an employee, the issuance of a security clearance, the conducting of a security or suitability investigation of an individual, the classifying of jobs, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter. (4) Information is used by the congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of that individual. (5) Information is used by another Federal agency or by a court when the government is party to a judicial proceeding before the court. (6) Information is used by the National Archives and Records Administration (General Services Administration) in records management inspections conducted under authority of 44 U.S.C. 2904 and 2906. (7) Information is used by NCUA in the production of summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained, or for related work force studies. While published statistics and studies do not contain individual identifiers, in some instances, the selection of elements of data included in the study may be structured in such a way as to make the data individually identifiable by inference. (8) Information is used by officials of the Office of Personnel Management, the Merit Systems Protection Board, including the Office of the Special Counsel, the Federal Labor Relations Authority and its General Counsel, or the Equal Employment Opportunity Commission when requested in performance of their authorized duties. (9) Information (that is relevant to the subject matter involved in a pending judicial or administrative proceeding) is used to respond to a request for discovery or for appearance of a witness. (10) Information is used by officials of labor organizations reorganized under the Civil Service Reform Act when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting work conditions. (11) Standard routine uses as set forth in appendix A.
Records are maintained in file folders.
Records are retrievable by the names of the individuals on whom they are maintained.
Records are maintained in lockable metal filing cabinets to which only authorized personnel have access.
Records are disposed of three (3) years after closing of the case. Disposal is by shredding or burning.
Director, Office of Human Resources, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
An individual may inquire as to whether the system contains a record
Upon request, the system manager will set forth the procedures for gaining access to available records.
Request to amend or correct a record should be directed to the system manager listed above.
Individual on whom the record is maintained; testimony of witness; agency officials; related correspondence from organization or persons.
Payroll Records System.
Office of the Chief Financial Officer, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. NCUA also has an interagency agreement with the General Services Administration, Region VI, Kansas City, Missouri to provide and maintain payroll and related services and systems involving NCUA employees. For administrative purposes, supporting documents in hard copy form may exist within NCUA at the duty station of each employee.
Employees of NCUA.
Salary and related payroll data, including time and attendance information.
5 U.S.C. 703; 44 U.S.C. 3301.
This system documents time and attendance and ensures that employees receive proper compensation and that NCUA's financial reports properly reflect employee salary and benefit payments. It is also used to allow the agency to budget employee pay and benefits.
(1) Information is used to ensure proper compensation to all NCUA employees and to formulate financial reports and plans used within the agency, or is sent to the General Services Administration (GSA). (2) Information is used to document time worked and provide a record of attendance to support payment of salaries and use of annual, sick, and nonpaid leave. (3) Users of the time and attendance information include the employee's supervisor, the office's timekeeper, the payroll officer, staff involved in the budget process, accountants responsible for the proper recording of payroll results, and the GSA National Payroll Center in Kansas City, Missouri. (4) Further information in this system is used to make reports to state and local taxing authorities. (5) The names, social security numbers, home addresses, dates of birth, dates of hire, quarterly earnings, employer identifying information, and State of hire of employees may be disclosed to the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services for the purpose of locating individuals to establish paternity, establish or modify orders of child support, identify sources of income and for other child support enforcement actions as required by the Personal Responsibility and Work Opportunity Reconciliation Act (Welfare Reform Law, Pub. L. 104-193). (6) Standard routine uses as set forth in appendix A.
Records are maintained in electronic media or in paper format.
Records are retrieved by name or social security number.
Records are maintained in secured offices, accessible by written authorization only.
Records are retained and disposed of in accordance with GSA policy.
Payroll Officer, Office of the Chief Financial Officer, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
Office Timekeepers, National Credit Union Administration, Central Office (1775 Duke Street, Alexandria, Virginia 22314-3428) and Regional Offices (see appendix B for Regional Offices' addresses).
An individual may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the system manager listed above. If there is no record on the individual, the individual will be so advised.
Upon request, the system manager will set forth the procedures for gaining access to available records.
Requests to amend or correct a record should be directed to the system manager listed above.
Information is primarily obtained from the individual whom the record concerns, the Office of Personnel Management, and the GSA. Also, time and attendance information is prepared and submitted by the timekeeper in a given employee's office.
Travel Advance and Voucher Information System.
Office of the Chief Financial Officer, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
All NCUA employees who have traveled or relocated in the course of performing their duty and who have been reimbursed for the expense of such travel.
This system contains information from the following forms: Travel Vouchers (NCUA 1012), Relocation Travel Order (NCUA 1617) Application for Travel Advance (NCUA 1371), and Travel Voucher Cover Sheet (NCUA 1364), Agreement to Remain in Federal Service (NCUA 1030), Statement of Difference (NCUA 1310), Repayment of Travel Advance (NCUA 1372), Direct Deposit Form (SF-1199A).
5 U.S.C. 5701-5752; Executive Order 11609 (July 22, 1971); Executive Order 11012 (March 27, 1962); 5 U.S.C. 4101-4118; Federal Travel Regulations, FPMR 101-7, Chapter 2, Section 6.3.
The purpose of this system is to allow for the management and storage of employee-related master data, properly account for employee-related reimbursements and provide documentary support for reimbursements to employees.
(1) Records are used to provide documentary support for reimbursements to employees for on-the-job and relocation travel expenses. (2) Users of the information include first and second line supervisors, NCUA accounting staff, and budgeting staff. (3) Standard routine uses as set forth in appendix A.
Records are stored in paper hard copy form and in a computer system.
Records are retrievable by social security number and name.
The paper hard copy records are maintained in secured offices. The computer disc and accounting system is located in a secured office and its access is limited to only those employees who need the information to process travel-related transactions.
Records are maintained in the Division of Financial Control until the annual financial audit is completed. After the audit, the paper records are stored in a Federal Records Center for a minimum of three years and the computer disc is purged. The accounting system is archived as necessary.
Director, Division of Financial Control, Office of the Chief Financial Officer, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
An individual may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the system manager listed above. If there is no record on the individual, the individual will be so advised.
Upon request, the system manager will set forth the procedures for gaining access to available records.
Requests to amend or correct a record should be directed to the system manager listed above.
Records are prepared by the individual whom the record concerns.
Unofficial Personnel and Employee Development and Correspondence Records.
For employees of an NCUA regional office, the system is located at the regional office where the employee is assigned (See appendix B for addresses of Regional Offices). For employees of the central office, the system is located at the assigned office, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
NCUA employees.
The system contains information on NCUA employees assigned to the particular regional or central office related to some or all of the following areas: name; address; telephone number; birthdate; ethnicity and gender codes; cu grade; employee identification number; work performance appraisals; district management; chartering efforts; reactions from credit union officials; individual development plans; supply and equipment information; for new examiners, bi-weekly training reports, training progress reports and training evaluations; work product samples; suggestions; awards; data on time and attendance, leave and pay; memos or notations and evaluations by superiors or others; benefit elections and designations of beneficiaries; and copies of personnel, travel and grievance records.
5 U.S.C. 301; 44 U.S.C. 3301.
Information is used for recording time, attendance and leave, controlling equipment inventories, contacting employees; evaluating and training staff, evaluating work progress; and for general administrative matters. Information may also be used to determine eligibility for retention or promotion.
(1) The information in this system may be disclosed to the United States Office of Personnel Management, the Merit Systems Protection Board, the Office of Special Counsel, the Equal Employment Opportunity Commission, the Federal Labor Relations Authority, the General Services Administration or an arbitrator or agent, to the extent the disclosure is needed to carry out the government-wide personnel management, investigatory, adjudicatory and appellate functions within their respective jurisdictions, or to obtain information. (2) The information in this system may be disclosed to federal, state, local or professional licensing boards or Boards of Medical Examiners, when such records reflect on the qualifications of a licensed individual or an individual seeking to be licensed. (3) This information is used to generate a telephone directory for all NCUA employees. (4) Standard routine uses as set forth in appendix A.
Records are maintained on paper hard copy as well as electronically on computer systems or other database applications.
Records are indexed alphabetically by name or Social Security number.
Physical security consists of maintaining records in locked metal file cabinets within secured offices and password protected computer systems.
Current and relevant information is maintained generally for a period of two years. Obsolete material is maintained in the same file cabinets and is periodically purged and destroyed after two years or upon employees' separation.
For employees assigned to a regional office the system manager is the Director of Management Services, Regional Office, National Credit Union Administration. (See appendix B for addresses of Regional Offices). For employees assigned to an office within the central office, the system manager is
An individual may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the Regional Director where the system is located. If there is no record on the individual, the individual will be so advised.
Upon request, the Regional Director or Office Director will set forth the procedures for gaining access to available records.
Requests to amend or correct a record should be directed to the Regional Director or Office Director.
Sources may include the individual whom the record concerns, supervisors of the individual, fellow employees, credit union officials, administrative officer or office assistant, and other persons whom the individual may encounter in the course of work performance. For payroll- and personnel-related information, the sources may include the General Service Administration and Office of Human Resources.
Emergency Information (Employee) File.
For employees of a regional office, the system is located at the regional office where the employee is assigned, National Credit Union Administration, (
NCUA employees; individuals designated by employees as emergency contacts; family members of employees.
This system contains personal information about NCUA employees, such as height, weight, hair color, eye color, current address, and telephone number, and in some locations may also have a personal cell telephone number and personal email address. Also, this system identifies the individual to contact in case of an emergency involving the employee.
5 U.S.C. 301.
The information in this system is used to maintain employee identification information in case of emergency.
(1) The information on the individual to contact in cases of emergency may be disclosed in case of emergency to any federal, state or local authority responding to the emergency. (2) In the event of an emergency, the information may be disclosed to the individual listed as a contact in case of emergency, or other person identified as a family member of the employee. This list is updated as necessary. The listed information is used to contact the employee if there is a national emergency. (3) Standard routine uses as set forth in appendix A.
Records are stored on paper hard copy and may also be stored electronically.
Records are indexed alphabetically by name and, where stored electronically as part of a computer system, are subject to electronic safeguards.
Records are maintained in locked file drawers or stored electronically as part of a computer database.
Records are disposed of after an employee is separated from the agency.
(1) For employees of an NCUA regional office, the system manager is the regional director of the regional office where the employee is assigned (See appendix B for addresses of Regional Offices). For employees of the central office, the system manager is the Office Director of the assigned office, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
An individual may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the appropriate system manager listed above. If there is no record on the individual, the individual will be so advised.
Upon request, the system manager will set forth the procedures for gaining access to available records.
Requests to amend or correct a record should be directed to the appropriate system manager listed above.
Individual on whom the record is maintained.
Employee Injury File.
Office of Human Resources, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
Any employee who has sustained a job-related injury or disease.
Copies of reports submitted by an individual who has sustained a job-related injury or disease. Copies of any further claims made regarding the same injury or disease or any other material required for documenting and adjudicating the claim.
Occupational Safety and Health Act of 1970, 29 CFR part 1960.
This information is maintained to provide data to the Department of Labor, when needed, for adjudication of a claim, and to prepare reports as required by the Department of Labor.
(1) Information is disclosed to the Department of Labor. (2) Standard routine use as set forth in appendix A.
Records are stored on paper in file cabinets.
Records are retrieved by date of injury and employee name.
Records are maintained in a locked file drawer.
Records are disposed five years after the year to which they relate.
Director, Office of Human Resources, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
An individual may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the system manager listed above. If there is no record on the individual, the individual will be so advised.
Upon request, the system manager will set forth the procedures for gaining access to available records.
Requests to amend or correct a record should be directed to the system manager listed above.
Individual on whom the record is maintained; superiors of individual; individual's physician; hospital attending individual; Department of Labor.
Investigative Reports Involving Any Crime, Suspected Crime or Suspicious Activity Against a Credit Union.
Office of General Counsel, National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428. Computerized records of Suspicious Activity Reports (SAR), with status updates, are managed by the Financial Crimes Enforcement Network (FinCEN), Department of the Treasury, pursuant to a contractual agreement, and are stored in Detroit, Michigan. Authorized personnel at NCUA's Central Office and regional offices have on-line access to the computerized database managed by FinCEN through individual work stations linked to the database central computer.
Directors, officers, committee members, employees, agents, and persons participating in the conduct of the affairs of federally insured credit unions who are reported to be involved in suspected criminal activity or suspicious financial transactions and are referred to law enforcement officials; and other individuals who have been involved in irregularities, violations of law, or unsafe or unsound practices referenced in documents received by the NCUA in the course of exercising its supervisory functions.
Inter- and intra-agency correspondence, memoranda, and reports. The SAR contains information identifying the credit union involved, the suspected person, the type of suspicious activity involved, and any witnesses.
12 U.S.C. 1786 and 1789.
The overall system serves as an NCUA repository for investigatory or enforcement information related to its responsibility to examine and supervise federally insured credit unions. The system maintained by FinCEN serves as the database for the cooperative storage, retrieval, analysis, and use of information relating to Suspicious Activity Reports made to or by the NCUA Board, the Federal Reserve Board, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, (collectively, the Federal financial regulatory agencies), and FinCEN to various law enforcement agencies for possible criminal, civil, or administrative proceedings based on known or suspected violations affecting or involving persons, financial institutions, or other entities under the supervision or jurisdiction of such Federal financial regulatory agencies.
Information in these records may be used to: (1) Determine if any further agency action should be taken. (2) Provide the federal financial regulatory agencies and FinCEN with information relevant to their operations; (3) Disclose information to third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation; (4) With regard to formal or informal enforcement actions; release information pursuant to 12 U.S.C. 1786(s), which requires the NCUA Board to publish and make available to the public final orders and written agreements, and modifications thereto; and (5) Standard routine uses as set forth in appendix A.
The records will be maintained in electronic data processing systems and paper files.
Computer output and file folders are retrievable by indexes of data fields, including name of the credit union, NCUA Region, and individuals' names.
Paper records and word processing discs are stored at the NCUA in lockable metal file cabinets. The database maintained by FinCEN complies with applicable security requirements of the Department of the Treasury. On-line access to the information in the database is limited to authorized individuals who have been designated by each federal financial regulatory agency and FinCEN, and each such individual has been issued a nontransferable identifier or password.
Records are maintained indefinitely.
General Counsel, NCUA, 1775 Duke Street, Alexandria, VA 22314-3428.
Inquiries should be sent to the System Manager as noted above.
Same as “Notification procedure” above.
Same as “Notification procedure” above.
Information received by the NCUA Board from various sources, including, but not limited to law enforcement and other agency personnel involved in sending inquiries to the NCUA Board, NCUA examiners, credit union officials, employees, and members. The information maintained by FinCEN is compiled from SAR and related historical and updating forms compiled by financial institutions, the NCUA Board, and the other federal financial regulatory agencies for law enforcement purposes.
This system is exempt from 5 U.S.C. 552a(c)(3), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(4)(G), (H) and (I), and (f) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2).
Freedom of Information and Privacy Act Requests and Invoices.
(1) Office of General Counsel, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. (2) Office of Inspector General National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. (3) For requests prior to 2006 processed by a regional office, the system is located at the regional office (see appendix B for a list of addresses of the regional offices). (4) For requests prior to 2006 processed by the Asset Management and Assistance Center, the system is located at AMAC, 4807 Spicewood Springs Road, Suite 5100, Austin, Texas 78759-8490.
This system of records includes information pertaining to any Freedom of Information Act (FOIA) or Privacy Act requester.
The system may contain the requester's name, company name or organization, address, date of request, invoice number, amount due, phone number, social security or tax identification number, description of information requested and documents located or result of search for documents.
12 U.S.C. 1789, 5 U.S.C. 552, 5 U.S.C. 552a.
Records in this system are used to process requests received. These records may be used by the NCUA for collection of the amount due, as well as to identify subsequent requests made by the same individuals.
(1) The information may be disclosed to a consumer reporting agency. The information disclosed to a consumer reporting agency is limited to: (a) Information necessary to establish the identity of the individual, including name, address, and social security or taxpayer identification number; (b) the amount, status, and history of the claim; and (c) the agency or program under which the claim arose.
Records are maintained in paper and electronic form.
Records in this system are retrievable by requester's name, company name or organization, date of request, category of requester, request number, invoice number, or key words.
Physical security consists of storing records on a password protected computer database and a hard copy secured in a metal file cabinet which is accessible only to those individuals responsible for processing requests and collecting outstanding payments.
Records are retained for various periods depending on the determination made on the request, but normally no greater than six years following the year in which the request was processed.
(1) Freedom of Information Act Officer, Office of General Counsel, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. (2) For requests processed by the Office of Inspector General, Inspector General, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
An individual may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the system manager listed above. If there is no record on the individual, the individual will be so advised.
Upon request, the system manager will set forth the procedures for gaining access to available records.
Requests to amend or correct a record should be directed to the system manager listed above.
The sources of records for this system of records are the FOIA and Privacy Act request files.
Liquidating Credit Union Records System.
Information within this system of records is located at the Asset and Management Assistance Center (AMAC) 4807 Spicewood Springs Road, Suite 5100, Austin, Texas 78759.
Members, employees and creditors of liquidating federally-insured credit unions.
Share and account records; personal data regarding income and debts; payment or employment history; accounts payable records.
12 U.S.C. 1787.
The information in this system is used to determine insurance, collect loan amounts due and for all purposes necessary to close out the affairs of the liquidated credit union.
(1) Information is used for payment of insurance claims to shareholders in liquidating federally-insured credit unions. (2) Information is used in the collection of outstanding loans, which may include referral of information to third party service providers or potential purchasers of the loans. (3) Information is used for all purposes necessary to close out the affairs of the liquidated credit union and carry out all appropriate liquidation-related functions of NCUA. (4) Information may be disclosed to address locators or a surety company in pursuit of a fidelity bond claim. (5) Information on unclaimed insured shares is included in a database on the NCUA Web site after other efforts to locate account holders have failed. (6) Information may be disclosed to the appropriate federal, state or local government agency, such as the Internal Revenue Service, if required by law or regulation or upon appropriate request. (7) Standard routine uses as set forth in appendix A.
This information is maintained on computer databases and hard copy. Copies of share and loan documents, incoming payments, and loan portfolios may also be maintained on microfilm copy.
Information is indexed by name of individual and by name of closed insured credit union.
Information is maintained in secured offices and in password protected computer databases.
Information is maintained for six years following the appointment of the NCUA Board as liquidating agent of an insured credit union unless the NCUA's Record Management Policy requires a different time period or does not require the information to be maintained. After the retention period is completed, the system manager may destroy any records that the system manager determines are unnecessary unless directed not to do so by a court of competent jurisdiction or governmental agency or prohibited by law.
President, AMAC, 4807 Spicewood Springs Road, Suite 5100, Austin, Texas 78759-8490.
An individual may inquire as to whether the system contains information pertaining to the individual by addressing a request in person or by mail to the system manager listed above. If there is no information on the individual, the individual will be so advised. Written inquiries should include name of inquirer, name of closed insured credit union of which inquirer was a member, and share and loan account numbers, if known.
Upon request, the system manager will set forth the procedures for gaining access to available information.
Requests to amend or correct a record should be directed to the system manager listed above.
Information is obtained from outside address locators; share and loan account files of the liquidating credit union of which the individual was a member; third party service providers; and credit bureaus.
Office of Inspector General (OIG) Investigative Records.
Office of Inspector General, NCUA, 1775 Duke Street, Alexandria, VA 22314-3428.
Subjects of investigation, complainants, and witnesses referred to in complaints or actual investigative cases, reports, accompanying documents, and correspondence prepared by, compiled by, or referred to the OIG.
The system is comprised of paper files of all OIG and some predecessor Office of Internal Auditor reports, correspondence, cases, matters, cross-indices, memoranda, materials, legal papers, evidence, exhibits, data, and workpapers pertaining to all closed and pending investigations and inspections.
The Inspector General Act of 1978, as amended, 5 U.S.C. App.3; 12 U.S.C. 1766.
Records in this system document the investigative work of the Office of Inspector General.
The National Credit Union Administration Office of Inspector General (OIG) may disclose information contained in a record in this system of records without the consent of the individual if the disclosure is compatible with the purpose for which the record was collected, under the following routine uses. (1) The OIG may disclose information from this system of records as a routine use to any public or private source, including a federal, state, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, but only to the extent necessary for the OIG to obtain information from those sources relevant to an OIG investigation, audit, inspection, or other inquiry. (2) The OIG may disclose information from this system of records as a routine use to the Department of Justice to the extent necessary to obtain its legal advice on any matter relevant to an OIG investigation, audit, inspection, or other inquiry related to the responsibilities of the OIG. (3) The OIG may disclose information to other federal entities, such as other Offices of Inspector General, to the General Accounting Office, or to a private party with which the OIG or the NCUA has contracted or with which it contemplates contracting, for the purpose of auditing or reviewing the performance or internal management of the OIG's investigative program, or for performing any other functions or analyses that facilitate or are relevant to an OIG investigation, audit, inspection or other inquiry. Such contractor or private firm shall be required to maintain Privacy Act safeguards with respect to such information. (4) The OIG may disclose information from this system of records to any Federal, State, local, or foreign agency maintaining civil, criminal, or other relevant enforcement or other pertinent records, or to another public authority or professional organization, if necessary to obtain information relevant to an OIG decision concerning the retention of an employee or other personnel action (other than hiring), the retention of a security clearance, the letting of a contract, or the issuance or retention of a grant or other benefit. (5) The OIG may disclose information in this system to federal, state, local or professional licensing boards or Boards of Medical Examiners, when such records reflect on the qualifications of a licensed individual or an individual seeking to be licensed. (6) The OIG may disclose information from this system of records for the purposes set forth in appendix A.
Information contained in this system is stored manually in files.
Information is retrieved in files by case number, general subject matter, or name of the subject of investigation.
Case reports and workpapers are maintained in approved security containers and locked filing cabinets in a locked room. Associated paper records are stored in locked metal filing cabinets, safes, or similar secure facilities.
Investigative Case Files 1. Case files are normally destroyed when they are 5
Inspector General, National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428.
This System of Records is generally exempt from the notice, access, and amendment requirements of the Privacy Act. However, the NCUA will entertain written requests to the systems manager on a case-by-case basis for notification regarding whether this system of records contains information about an individual. Requests should be marked “Privacy Act request,” and should state the name and address of the requester, and provide a notarized statement, or other documentation, e.g., copy of a driver's license, attesting to the individual's identity. Requests submitted on behalf of other persons must include their written authorizations. Such requests in the form prescribed may also be presented in person at the Office of Inspector General, National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428. Simultaneously with requesting notification of inclusion in this system of records, the individual may request record access as described in this section.
Same as “Notification procedure.”
Same as “Notification procedure.”
The OIG collects information from many sources, including the subject individuals, employees of the NCUA, other government employees, and witnesses and informants, and non-governmental sources.
Pursuant to 5 U.S.C. 552a(j)(2), this system of records is exempt from subsections (c)(3) and (4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f) and (g) of the Act. This exemption applies to information in the system that relates to criminal law enforcement and meets the criteria of the (j)(2) exemption. Pursuant to 5 U.S.C. 552(k)(2), to the extent that the system contains investigative material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2), this system of records is exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f). The exemption rule is contained in 12 CFR 792.66 of the NCUA regulations.
Consumer Complaints Against Federal Credit Unions.
Information is maintained in NCUA's regional offices (
Persons who submit complaints concerning operating federal credit unions.
Complaint letters, investigation reports, and related correspondence concerning the complainants and the federal credit union involved.
12 U.S.C. 1766(i)(1) and 1789(a)(7); 5 U.S.C. 301; 15 U.S.C. 1601-1693.
This system documents the number and type of consumer complaints received and processed by NCUA.
(1) Information may be disclosed to officials of federal credit unions and other persons mentioned in a complaint or identified during an investigation. (2) Disclosures may be made to the Federal Reserve Board, other federal financial regulatory agencies, the Federal Financial Institutions Examination Council, the White House Office of Consumer Affairs, and the Congress, or any of its authorized committees in fulfilling reporting requirements or assessing implementation of applicable laws and regulations. (Such disclosures will be made in a nonidentifiable manner when feasible and appropriate.) (3) Referrals may also be made to other federal and nonfederal supervisory or regulatory authorities when the subject matter is a complaint or inquiry which is more properly within such agency's jurisdiction. (4) Standard routine uses as set forth in appendix A.
Records are stored on paper or computer database.
Records are retrievable from files by federal credit union name, by complainant name, or assigned control number.
Records are maintained in secured offices in either a file cabinet or on a password protected computer system.
Records are retained for three years and then destroyed. Consumer's name, federal credit union's name, subject of complaint, date received, and date resolved are kept until no longer needed.
The System Manager is the Regional Director in the regional office where the complaint was processed. (See appendix B for Regional Office addresses.)
An individual may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the system manager listed above. If there is no record on the individual, the individual will be so advised.
Upon request, the system manager will set forth the procedures for gaining access to available records.
Request to amend or correct a record should be directed to the system manager listed above.
Complainant (and his or her representative, which may include, e.g., a member of Congress or an attorney); Federal credit union officials; employees and members of the credit union involved; and NCUA examiners and central files on federal credit unions.
Litigation Case Files.
Office of General Counsel, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
Records are maintained in files by the case name of individuals who are: the subject of NCUA investigations made in contemplation of legal action; involved in civil litigation with NCUA or involved in administrative proceedings; involved in litigation of interest to NCUA; or pursuing tort claims.
Records in case files include: Investigative reports relating to possible felonies or violations of the Federal Credit Union Act; transcripts of testimony or affidavits; documents and other evidentiary matters, pleadings and other documents filed in court; orders filed or issued in civil, administrative or criminal proceedings; correspondence relating to investigatory or litigation matters; information provided by the individual under investigation or from a Federal credit union; and other memoranda gathered and prepared by staff in performance of their duties.
12 U.S.C. 1766, 1786, 1787, and 1789; 28 U.S.C. 2671-2680.
This system documents the preparation and progress of legal proceedings and investigations conducted by the Office of General Counsel.
(1) The staff of the Office of General Counsel may use such records to render legal advice concerning investigations or courses of legal action; to represent NCUA in all judicial and administrative proceedings in which NCUA or any of its employees who, within the scope of employment and in an official capacity, is a party; or to intervene as an amicus curiae. (2) The information in this system may be disclosed to federal, state, local or professional licensing boards or Boards of Medical Examiners, when such records reflect on the qualifications or fitness of a licensed individual or an individual seeking to be licensed. (3) Standard routine uses set forth in appendix A.
General Counsel, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
An individual may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the system manager listed above. If there is no record on the individual, the individual will be so advised.
Upon request, the system manager will set forth the procedures for gaining access to available records.
Requests to amend or correct a record should be directed to the system manager listed above.
Record source categories vary depending upon the legal issue but generally are obtained from the following: NCUA staff and internal agency memoranda; federal employees and private parties involved in torts; contracts; federal credit union files or officials; general law texts and sources; law enforcement officers; witnesses and others; administrative and court pleadings, transcripts or judicial orders/decisions; evidence gathered in connection with the matter involved; and from individuals to whom the records relate.
This system is subject to the specific exemption provided by 5 U.S.C. 552a(k)(2), as the system of records is investigatory material compiled for law enforcement purposes.
PaymentNet J.P.Morgan Chase Bank PaymentNet.
J.P.Morgan Chase Bank, N.A. Commercial Card Solutions (Elgin, IL).
Employees of NCUA with individually billed government travel cards and/or centrally billed government travel cards.
NCUA employee credit card data, including name and address, and past and present charges to account.
Federal Travel Regulations, Travel and Transportation Reform Act of 1998 (Pub. L. 105-264).
The purpose of this system is for the Office of the Chief Financial Officer (OCFO) to monitor the usage of the government travel card by NCUA employees and to assure timely payments of accounts.
The system can be used by individual cardholders to access their own account information to monitor charges, payments, change their address, etc. It is also used by OCFO to provide oversight of the travel card program by monitoring card usage in order to reduce card misuse, abuse, and delinquencies.
Records are maintained in a database that is accessible by Internet over a 128-bit encryption secure connection.
Records are retrieved by name or account number.
Records are maintained in a secure database that can only be accessed with a username and password provided by Bank of America after receipt of an application submitted by the OCFO. Only authorized staff in OCFO can access multiple employee records, all other employees can only access their own account information within the PaymentNet system.
All account activity (charges, payments, credits,
Deputy Financial Officer, Office of the Chief Financial Officer, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
An individual may inquire about his/her personal account information by accessing the PaymentNet system with a username and password provided to them by Bank of America or by written request to OCFO.
Upon approval of the cardholder application and issuance of the government travel card by BOA, a username and password is also
Requests to amend or correct a record should be submitted online through the PaymentNet system or submitted in writing to OCFO.
Records are prepared by the individual whom the record concerns by submission of an application to J.P.Morgan Chase Bank and by the subsequent activity to the individual's account.
Contract Employee Pay and Leave Records.
Information within this system of records is located at the Asset Management and Assistance Center (AMAC) 4807 Spicewood Springs Road, Suite 5100, Austin TX 78759-8490, and the payroll processor, Paychex of San Antonio, Texas.
Contract employees hired by the Agent for the Liquidating Agent for work on liquidation cases.
Wages and related payroll data, including leave records.
Fair Labor Standards Act.
This system documents employee information and ensures that employees receive proper compensation.
Information is used to document time worked and provide a record of attendance to support payment of wages and use of leave. Users of the system include the payroll officer (financial analyst), the employee's supervisor, and Paychex.
Records are maintained in file folders.
Records are retrieved by name.
Records are maintained in a secured file cabinet, accessible only to the payroll officer and division manager.
Records are retained and disposed of in accordance with the Fair Labor Standards Act.
An individual may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the system manager listed above. If there is no record on the individual, the individual will be so advised.
Leave Transfer Program Case Files.
Office of Human Resources, 1775 Duke Street, Alexandria, VA 22314-3428.
NCUA employees who submitted applications to become leave recipients under the provisions of the Leave Transfer program.
Leave transfer program applications, leave requests, and medical documentation.
5 CFR 630.913.
To administer the NCUA leave transfer program.
These records are used to administer the NCUA leave transfer program.
These records are maintained in file folders and filed in metal file cabinets.
The records are retrieved by the names of the employee.
These files are kept in a locked room and are available only to authorized personnel whose duties require access.
These records are maintained in accordance with NARA General Records Schedules 1 (Civilian Personnel Records). Disposal of manual records is by shredding.
Director, Office of Human Resources, National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428.
An individual or an individual's authorized representative may inquire as to whether the system contains a record pertaining to the individual by addressing a request in person or by mail to the system manager listed above. If there is no record on the individual, the individual will be so advised.
Personal Identity Verification Files.
Office of Human Resources, National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428.
Individuals who require regular, ongoing access to federal facilities, information technology systems, or information classified in the interest of national security, including applicants for employment or contracts, federal employees, contractors, students, interns, volunteers, affiliates, individuals authorized to perform or use services provided in NCUA facilities and individuals formerly in any of these positions. The system also includes individuals accused of security violations or found in violation.
Name, former names, birth date, birth place, Social Security number, home address, phone numbers, employment history, residential history, education and degrees earned, names of associates and references and their contact information, citizenship, names of relatives, birthdates and places of relatives, citizenship of relatives, names of relatives who work for the federal
Executive orders 10450, 10865, 12333, and 12356; sections 3301 and 9101 of title 5, U.S. Code; sections 2165 and 2201 of title 42, U.S. Code; sections 781 to 887 of title 50, U.S. Code; parts 5, 732, and 736 of title 5, Code of Federal Regulations; and Homeland Security Presidential Directive (HSPD) 12, Policy for a Common Identification Standard for Federal Employees and Contractors, August 27, 2004.
The records in this system of records are used to document and support decisions regarding clearance for access to classified information, the suitability, eligibility, and fitness for service of applicants for Federal employment and contract positions, including students, interns, or volunteers to the extent their duties require access to federal facilities, information, systems, or applications. The records may be used to document security violations, employee access and attendance, and supervisory actions taken.
(1) The information maintained in this system is collected from PIV Applicants, the individuals to whom a PIV card is issued. The PIV Applicant may be a current or prospective Federal hire, a Federal employee or a contractor. The information is used in each step of the PIV Process for example, conducting a background investigation, completing the identity proofing and registration process, creating an employee record in the Comprehensive Human Resources Integrated System (CHRIS), issuing a PIV card and the determination of physical and logical access. Additionally, the information such as card expiration date, PIV Registrar Approval, etc. is maintained in this file and is used to assist in the production of the PIV card. (2) The information in this system may be disclosed to the United States Office of Personnel Management, the Merit Systems Protection Board, the Office of Special Counsel, the Equal Employment Opportunity Commission, the Federal Labor Relations Authority, the General Services Administration or an arbitrator or agent to the extent the disclosure is needed to carry out the government-wide personnel management, investigatory, adjudicatory and appellate functions within their respective jurisdictions, or to obtain information. (3) The information in this system may be disclosed to federal, state, local or professional licensing boards or boards of Medical Examiners, when such records reflect on the qualifications of a licensed individual or individual seeking to be licensed. (4) Standard routine uses as set forth in Appendix A.
Records are stored on paper and electronically in a secure location.
Files are retrieved by name or Social Security number (SSN), employee name, and employee identification number.
Records are destroyed upon notification of death or not later than five years after separation or transfer of employee to another agency, whichever is applicable.
Security Officer, Office of Human Resources, National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428.
An individual can determine if this system contains a record pertaining to the individual by addressing a request in writing to the system manager listed above. If there is no record on the individual, the individual will be so advised.
When requesting notification of or access to records covered by this system, an individual should provide at a minimum his/her full name, date of birth, office and duty location in order to establish identity.
Upon request, the system manager will set forth the procedures for gaining access to available records.
Requests to amend or correct a record should be directed to the system manager listed above. Requesters should also reasonably identify the record, specify the information they are contesting, state the corrective action sought and the reasons for the correction along with supporting justification showing why the record is not accurate, timely, relevant, or complete.
Information is obtained from a variety of sources including the employee, contractor, or applicant via use of the SF-85, SF-85P, or SF-86 and personal interviews; employers' and former employers' records; FBI criminal history records and other databases; financial institutions and credit reports; medical records and health care providers; educational institutions; interviews of witnesses such as neighbors, friends, co-workers, business associates, teachers, landlords, or family members; tax records; and other public records. Security violation information is obtained from a variety of sources, such as witnesses or supervisor's reports. Electronic records are created based on use of security badges and parking passes at readers at entrances and exits to parking at the Central Office, building entrances, and building elevators.
1. If a record in a system of records indicates a violation or potential violation of civil or criminal law or a regulation, and whether arising by general statute or particular program statute, or by regulation, rule, or order, the relevant records in the system or records may be disclosed as a routine use to the appropriate agency, whether Federal, State, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
2. A record from a system of records may be disclosed as a routine use to a Federal, State, or local agency which maintains civil, criminal, or other relevant enforcement information or other pertinent information, such as current licenses, if necessary, to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit.
3. A record from a system of records may be disclosed as a routine use to a Federal agency, in response to its request, for a matter concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision in the matter.
4. A record from a system of records may be disclosed as a routine use to an authorized appeal grievance examiner, formal complaints examiner, equal employment opportunity investigator, arbitrator or other duly authorized official engaged in investigation or settlement of a grievance, complaint, or appeal filed by an employee. Further, a record from any system of records may be disclosed as a routine use to the Office of Personnel Management in accordance with the agency's responsibility for evaluation and oversight of Federal personnel management.
5. A record from a system of records may be disclosed as a routine use to officers and employees of a federal agency for purposes of audit.
6. A record from a system of records may be disclosed as a routine use to a member of Congress or to a congressional staff member in response to an inquiry from the congressional office made at the request of the individual about whom the record is maintained.
7. A record from a system of records may be disclosed as a routine use to the officers and employees of the General Services Administration (GSA) in connection with administrative services provided to this Agency under agreement with GSA.
8. Records in a system of records may be disclosed as a routine use to the Department of Justice, when: (a) NCUA, or any of its components or employees acting in their official capacities, is a party to litigation; or (b) Any employee of NCUA in his or her individual capacity is a party to litigation and where the Department of Justice has agreed to represent the employee; or (c) The United States is a party in litigation, where NCUA determines that litigation is likely to affect the agency or any of its components, is a party to litigation or has an interest in such litigation, and NCUA determines that use of such records is relevant and necessary to the litigation, provided, however, that in each case, NCUA determines that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
9. Records in a system of records may be disclosed as a routine use in a proceeding before a court or adjudicative body before which NCUA is authorized to appear (a) when NCUA or any of its components or employees are acting in their official capacities; (b) where NCUA or any employee of NCUA in his or her individual capacity has agreed to represent the employee; or (c) where NCUA determines that litigation is likely to affect the agency or any of its components, is a party to litigation or has an interest in such litigation, and NCUA determines that use of such records is relevant and necessary to the litigation, provided, however, NCUA determines that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
The National Endowment for the Humanities.
Notice of meetings.
Pursuant to the provisions of the Federal Advisory Committee Act (Pub. L. 92-463, as amended), notice is hereby given that the following meetings of Humanities Panels will be held at the Old Post Office, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
Michael P. McDonald, Advisory Committee Management Officer, National Endowment for the Humanities, Washington, DC 20506; telephone (202) 606-8322. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the Endowment's TDD terminal on (202) 606-8282.
The proposed meetings are for the purpose of panel review, discussion, evaluation and recommendation on applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including discussion of information given in confidence to the agency by the grant applicants. Because the proposed meetings will consider information that is likely to disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential and/or information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, pursuant to authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee meetings, dated July 19, 1993, I have determined that these meetings will be closed to the public pursuant to subsections (c)(4), and (6) of section 552b of Title 5, United States Code.
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Section 208 of the Energy Reorganization Act of 1974 (Pub. L. 93-438) defines an abnormal occurrence (AO) as an unscheduled incident or event which the U.S. Nuclear Regulatory Commission (NRC) determines to be significant from the standpoint of public health or safety. The Federal Reports Elimination and Sunset Act of 1995 (Pub. L. 104-68) requires that AOs be reported to Congress annually. During Fiscal Year 2009, nine events that occurred at facilities licensed or otherwise regulated by the NRC and/or Agreement States were determined to be AOs. The report describes three events at NRC-licensed facilities. All three NRC-licensee events were medical events, as defined in Title 10, Part 35, of the Code of Federal Regulations (10 CFR part 35). The report also describes six events at Agreement State-licensed facilities. [Agreement States are those States that have entered into formal agreements with the NRC pursuant to Section 274 of the Atomic Energy Act (AEA) to regulate certain quantities of AEA licensed material at facilities located within their borders.] Currently, there are 37 Agreement States. The first two Agreement State-licensee events involved radiation exposure to an embryo/fetus. The other four Agreement State-licensee events were medical events, as defined in 10 CFR part 35, and occurred at medical institutions. As required by Section 208, the discussion for each event includes the date and place, nature and probable consequences, the cause or causes, and the actions taken to prevent recurrence. Each event is also being described in NUREG-0090, Vol. 32, “Report to Congress on Abnormal Occurrences: Fiscal Year 2009.” This report is available electronically at the NRC Web site
There are three major categories of events reported in this document: I. For All Licensees, II. For Commercial Nuclear Power Plant Licensees, and III. Events at Facilities Other Than Nuclear Power Plants and All Transportation Events. The full report, available on the NRC Web site, provides the specific criteria for determining when an event is an abnormal occurrence (AO) and discusses “Other Events of Interest” that do not meet the AO criteria but which the Commission has determined should be included in the report. The event identification number begins with “AS” for Agreement State AO events and “NRC” for NRC AO events.
During this reporting period, two events at Agreement State-licensed facilities were significant enough to be reported as abnormal occurrences (AOs). Although both of these events occurred at medical facilities, they both involved unintended exposures to individuals who were not the patient. Therefore, these events belong under the criteria I.A, “For All Licensees” category as opposed to the criteria III.C, “For Medical Licensees” category.
On May 13, 2009, the patient informed the authorized user that she was pregnant. The administration of iodine-131 was given to the patient approximately 5 days post-conception, a time period at which the thyroid had not developed. The hospital discovered the pregnancy at 9.5 weeks gestation, at which time the thyroid had developed. Due to residual iodine-131 in the patient's system, both a whole body and an organ dose exposure occurred. The hospital calculated a total whole body dose to the embryo/fetus of 119 mSv (11.9 rem) and a fetal thyroid dose of 9.7 mSv (0.97 rem). The hospital recommended that the patient consult with a genetic counselor for any potential health effects to the embryo/fetus.
The administration of iodine-131 was given to the patient at 2 to 3 weeks gestation (as determined by a consulting physician), a time period at which the thyroid had not developed. Shortly thereafter, the pregnancy ended. The licensee calculated a total whole body dose of 67 mSv (6.7 rem) to the embryo/fetus. There was no dose to the fetal thyroid since the pregnancy had ended before the thyroid had developed.
During this reporting period, no events at commercial nuclear power plants in the United States were significant enough to be reported as AOs.
During this reporting period, three events at NRC-licensed or regulated facilities and four events at Agreement State-licensed facilities were significant enough to be reported as AOs.
On October 16, 2008, the patient notified her physician of erytherma on her left breast. During a records review, the medical physicist determined that an error in programming the catheter length in the HDR device caused the source to stop 10 cm short of the intended tumor site in the right breast. Due to this programming error, the dose intended for the right breast was delivered to the skin of the left breast. The authorized user concluded that no chronic health effect to the patient is expected.
During the administration, the patient attempted to swallow the capsule, but it became lodged in an obstruction in the upper portion of the esophagus. Licensee staff provided the patient with soda and applesauce to help dissolve the capsule, and after 2.5 hours the capsule passed the obstruction. Since the capsule was lodged in the patient's upper portion of the esophagus for longer than expected, an estimated dose of 18 Gy (1,800 rad) was received to a small area of esophageal tissue. If the capsule had not become lodged in the upper portion of the patient's esophagus, the esophagus would have received the intended dose of 10.12 Gy (1,012 rad) instead of 18 Gy (1,800 rad). The dose to the esophagus exceeded the intended dose by 78 percent.
On October 22, 2008, the event was discussed with the patient during a follow-up visit with the prescribing physician. The prescribing physician indicated that potential health effects from this administration could include esophagitis and radiation fibrosis.
An error in entry of information into the treatment planning system caused the wrong nerve to receive treatment. The error was identified by the neurosurgeon 9 minutes into the 45-minute treatment. The licensee concluded that no significant adverse health effect to the patient is expected.
The source wire for needle 13 hung about 6 inches past the disconnected guide tube, which resulted in the skin dose. The licensee conducted several follow-up examinations of the patient's inner thigh and noted that no skin reddening or injury has occurred and the patient is not experiencing any pain in this area. Therefore, the licensee concluded that no significant adverse health effect to the patient is expected.
According to the licensee, an interpretation of the ultrasound image of the patient's prostate resulted in 30 of the 64 seeds delivered to the prostate while the other 34 seeds were delivered outside the prostate. Due to the patient's prostate being smaller than normal, the prostate received 68 Gy (6,800 rad) of the prescribed dose and the urethra and bulb of the penis (unintended sites) received approximately 76 Gy (7,600 rad). Prior to the seeds being implanted, the urologist and radiation oncologist should have consulted on the ultrasound image of the patient's prostate to determine the correct seed placement. The licensee concluded that no significant adverse health effect on the patient is expected. On May 19, 2009, the patient returned for a second treatment to compensate for the original underdosing to the prostate.
The patient received treatment to the first and second discrete brain sites and after receiving treatment to the second discrete site, it was discovered that an 18 mm collimator was used to deliver treatment instead of the prescribed 8 mm collimator. The larger collimator caused the volume of each of the two discrete sites to increase by 2.45 cubic meters, resulting in a dose of 24 Gy (2,400 rad) to additional brain tissue. After the 18 mm collimator was discovered, it was replaced with the 8 mm collimator and the patient received treatment to the five remaining discrete sites as prescribed. The licensee concluded that no significant adverse health effect to the patient is expected.
On September 21, 2009, a dosage of 6.9 GBq (187 mCi) of iodine-131 was administered to the patient through an existing feeding tube. Daily radiation measurements indicated small decreases in radiation readings that were consistent with the physical decay of iodine-131, but not consistent with the biological elimination of iodine-131. On September 25, 2009, the feeding tube was replaced and a subsequent investigation revealed that the majority of the dosage, 6.1 GBq (166 mCi), was administered to the wrong orifice of the feeding tube. As a result, the dosage remained in the balloon of the feeding tube and irradiated the patient's stomach, resulting in an approximate dose of 16 Gy to 19 Gy (1,600 rad to 1,900 rad) to the stomach.
For the U.S. Nuclear Regulatory Commission.
60-day notice and request for comments; correction.
The Peace Corps published a document in the
Comments must be submitted on or before September 14, 2010.
Comments should be addressed to Marjorie Anctil, Director of World Wise Schools, Peace Corps, 1111 20th Street, NW., Washington, DC 20526. Marjorie Anctil can be contacted by telephone at 202-692-1461 or e-mail at
Marjorie Anctil, at Peace Corps address above.
Proposal to renew the following currently approved collections of information:
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In accordance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, which provides opportunity for public comment on new or revised data collections, the Railroad Retirement Board (RRB) will publish periodic summaries of proposed data collections.
Under Section 12 of the Railroad Retirement Act (RRA), the RRB may pay annuity benefits to a representative payee when an employee, spouse or survivor annuitant is incompetent or a minor. The RRB is responsible for determining if direct payment to an annuitant or a representative payee would best serve the annuitant's best interest. The accountability requirements authorizing the RRB to conduct periodic monitoring of representative payees, including a written accounting of benefit payments received, are prescribed in 20 CFR 266.7.
The RRB utilizes the following forms to conduct its representative payee monitoring program.
Form G-99a,
The RRB proposes no changes to Forms G-99a or G-99c. Approximately 5,400 Form G-99a's and 420 G-99c's are completed annually. The completion time for Form G-99a is estimated at 18 minutes per response. The completion time for Form G-99c is estimated at between 24 to 31 minutes per response. Total annual respondent burden hours for the information collection is estimated at 1,802 hours.
Under Section 2 of the Railroad Retirement Act, an annuity is not payable, or is reduced for any month(s) in which the beneficiary works for a railroad or earns more than prescribed amounts. The provisions relating to the reduction or non-payment of annuities by reason of work are prescribed in 20 CFR part 230.
The RRB utilizes Form G-19-F,
The RRB proposes no changes to Form G-19-F. Approximately 900 G-19-F's are completed annually at an estimated completion time of eight minutes per response. Total respondent burden is estimated at 120 hours.
Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Montana (FEMA-1922-DR), dated 07/10/2010.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 07/10/2010, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 12233B and for economic injury is 12234B.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of California (FEMA-1911-DR), dated 05/07/2010 .
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of California, dated 05/07/2010, is hereby amended to establish the incident period for this disaster as beginning 04/04/2010 and continuing through 07/04/2010.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of New York (FEMA-1899-DR), dated 04/16/2010.
Submit completed loan applications to: U.S. Small Business Administration, Processing And Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of New York, dated 04/16/2010, is hereby amended to re-establish the incident period for this disaster as beginning 03/13/2010 and continuing through 03/31/2010 .
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of New York (FEMA-1899-DR), dated 04/16/2010.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of New York, dated 04/16/2010, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the Commonwealth of Virginia (FEMA-1905-DR), dated 04/27/2010.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the Commonwealth of Virginia, dated 04/27/2010, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, under section 309 of the Act and Section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small Business Investment Company License No. 09/79-0415 issued to Bay Partners SBIC II, L.P., and said license is hereby declared null and void as of June 10, 2010.
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, under section 309 of the Act and section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small business Investment Company License No. 01/71-0397 issued to Longworth Venture Partners II-A, L.P. and said license is hereby declared null and void. United States Small Business Administration.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of E-Sync Networks, Inc. (n/k/a ESNI, Inc.) because it has not filed any periodic reports since the period ended December 31, 2001.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of EchoCath, Inc. because it has not filed any periodic reports since the period ended May 31, 2001.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Edison Brothers Stores, Inc. because it has not filed any periodic reports since October 31, 1998.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Electronic Technology Group, Inc. (n/k/a SolutionNet International, Inc.) because it has not filed any periodic reports since the period ended April 30, 1994.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of EMCEE Broadcast Products, Inc. because it has not filed any periodic reports since the period ended September 30, 2002.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of ERD Waste Corp. because it has not filed any periodic reports since the period ended June 30, 1997.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Eurasia Gold Fields, Inc. because it has not filed any periodic reports since the period ended September 30, 2004.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of European Micro Holdings, Inc. because it has not filed any periodic reports since the period ended June 30, 2007.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Exotech, Inc. because it has not filed any periodic reports since the period ended March 31, 2002.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchanges will amend NYSE Rule 134 (Differences and Omissions-Cleared Transactions) and NYSE Amex Equities Rule 134 (NYSE Amex Equities. Differences and Omissions-Cleared Transactions) to provide for certain technical procedures with respect to comparison of executed transactions.
In its filing with the Commission, the Exchanges included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchanges have prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchanges operate the On-Line Comparison System (“OCS”) to assist in trade settlement. OCS conducts comparison processing, which includes matching initial trade submissions, correction processing, omnibus processing, and questioned trade (“QT”) resolution for trades that take place on the Exchanges. The OCS system is used by the Exchanges' members in their roles as clearing firms, brokers, and Designated Market Making Units (“DMM Units”) for trade executions. OCS is linked internally to NYSE's trading systems and externally to the National Securities Clearing Corporation.
To facilitate the comparison process, the Exchanges utilize omnibus account designations to record trade data.
In May 2009, each of the Exchanges amended its Rule 134 to enable them to assign on the second business day after the trade date (“T+2”) any open balance in any of the omnibus accounts they use to compare trades to either a DMM Unit or to the member organization that had been identified as the clearing firm for one side of an unresolved trade.
Each of the Exchanges will now amend its Rule 134(e)(iii). Rule 134(e)(iii) will now specify that DMM units are assigned as the contra party to any unresolved omnibus account imbalances remaining in OCS. New subsection (iv) to Rule 134(e) will provide that a Floor broker's clearing firm will be assigned as the contra party to any uncompared e-Quote transactions remaining in OCS. Each of the Exchanges will also add to both subsections that the contra party shall be assigned pursuant to the processes set forth in subsection (e)(i) and (e)(ii) of their Rule 134 but no earlier than 7 p.m.
By creating a new subsection (iv) pertaining only to Floor brokers' clearing firms and removing all such references to Floor brokers' clearing firms from subsection (e)(iii), the Exchanges are making clear that the DMM unit is assigned as the contra party to an omnibus account imbalance and that clearing firms are the assigned contra party to an uncompared trade. Specifically, a Floor broker's clearing firm is assigned as the default contra side in a trade resulting from an execution involving e-Quotes (
For new subsection 134(e)(iv), the Exchanges will shorten the time frame for assignment of uncompared e-Quote transactions from T+2 to the first business day after the trade date (“T+1”). The Exchanges believe that the shortened time frame for resolving uncompared e-Quote transactions will provide Floor brokers and clearing firms with more information and certainty on settlement date, which is the third business day after trade date (T+3). In particular, the Exchanges believe that the changes for resolving uncompared e-Quote transactions are necessary for situations where there are system outages. Under normal trading conditions, the number of e-Quote QTs that remain unresolved by the end of T+1 is relatively low. In the event of a Broker System outage, however, the number of e-Quote QTs could increase dramatically. Therefore, to mitigate risk and exposure to the Floor broker community and to facilitate comparison and settlement, the Exchanges believe that reducing the time period from close
The Exchanges state that the basis under the Act for these proposed rule changes is the requirement under Section 6(b)(5)
The Exchanges do not believe that the proposed rule changes will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchanges have not solicited or received written comments with respect to the proposed rule changes. The Exchanges will notify the Commission of any written comments it receives.
The Exchanges have filed the proposed rule changes pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission is granting this request because doing so will enable the Exchanges to further clarify and strengthen their processes to resolve uncompared e-Quote transactions or unresolved account imbalances without undue delay while still affording interested parties the opportunity to submit comments or concerns to the Commission regarding these proposals. The new processes should instill greater confidence among the Exchanges' members and investors that such situations will be handled in a timely and orderly manner.
For these reasons, the Commission is waiving the 30-day delay in operability so that the proposed rule changes have become operative immediately upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On May 14, 2010, Financial Industry Regulatory Authority, Inc. (“FINRA”) (f/k/a National Association of Securities Dealers, Inc. (“NASD”)) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
As part of the process of developing a new consolidated rulebook (“Consolidated FINRA Rulebook”),
FINRA proposes to adopt the margin requirements set forth in NASD Rules 2520 through 2522 and IM-2522 as FINRA Rule 4210, subject to certain amendments, discussed below and to delete Incorporated NYSE Rule 431 (Margin Requirements). The proposed amendments, among other things, reflect certain requirements in Incorporated NYSE Rule 431.
NASD Rule 2520 (Margin Requirements) and Incorporated NYSE Rule 431, which are almost identical, prescribe requirements governing the extension of credit by members that offer margin accounts to customers, as generally permitted in accordance with Regulation T of the Board of Governors of the Federal Reserve System (“Regulation T”).
FINRA proposes to combine NASD Rules 2520, 2521, 2522 and IM-2522 into the single consolidated margin rule, FINRA Rule 4210. In addition, FINRA proposes to re-structure the rule to improve its organization and make it easier to read. First, FINRA proposes to incorporate NASD Rule 2521 (Margin—Exemption for Certain Members) as FINRA Rule 4210(h), which provides that any member for which another self-regulatory organization acts as the designated examining authority is exempt from FINRA Rule 4210. Second, FINRA proposes to incorporate NASD Rule 2522 (Definitions Related to Options, Currency Warrants, Currency Index Warrants and Stock Index Warrant Transactions) as FINRA Rule 4210(f)(2)(A), which contains definitions regarding margining options, currency warrants, currency index warrants and stock index warrant transactions.
FINRA proposes in several instances in FINRA Rule 4210
FINRA proposes to integrate Incorporated NYSE Rule 431 Supplementary Material .10 into FINRA Rule 4210(e)(3) regarding joint accounts in which the carrying member or a partner or stockholder therein has an interest. The provision permits a member to seek an exemption under the FINRA Rule 9600 Series if the account is confined exclusively to transactions and positions in exempted securities.
FINRA proposes to adopt provisions from Incorporated NYSE Rule 431 pertaining to deductions from net capital on control and restricted securities, which are not contained in NASD Rule 2520.
FINRA proposes to adopt Supplementary Material .30 and .60 from Incorporated NYSE Rule 431 regarding day trading in proposed FINRA Rule 4210(f)(8)(B). FINRA proposes to integrate Supplementary Material .60 from Incorporated NYSE Rule 431 in FINRA Rule 4210(f)(8)(B)(iii) to provide that the day-trading buying power for non-equity securities may be computed using the applicable special maintenance margin requirements pursuant to other provisions of the margin rule. In addition, FINRA proposes to adopt Supplementary Material .30 from Incorporated NYSE Rule 431 as FINRA Rule 4210(f)(8)(B)(iv)b. to provide that in the event that the member at which a customer seeks to open an account or resume day trading in an existing account, knows or has a reasonable basis to believe that the customer will engage in pattern day trading, then the minimum equity required ($25,000) must be deposited in the account prior to commencement of day trading. FINRA also proposes to relocate paragraph (f)(8)(C) of NASD Rule 2520 into FINRA Rule 4210(f)(8)(B)(iii) that specifies that day trading deficiencies must be met within five business days of the trade date.
FINRA proposes to amend FINRA Rule 4210(g)(5) to highlight to members that portfolio margin-eligible participants, in addition to being required to be approved to engage in uncovered short option contracts pursuant to FINRA Rule 2360, must be approved to engage in security futures transactions pursuant to FINRA Rule 2370.
FINRA proposes to add the terms “approved market maker,” “market maker” and “market making” to FINRA Rule 4210(f)(10)(F) to conform to rule changes made by the NYSE.
Finally, FINRA proposes to make several technical changes to the margin rule text to update terminology and similar clarifications. First, FINRA proposes to add definitions to FINRA Rule 4210(f)(2)(A) regarding “listed” and “OTC” options and employ such terms throughout FINRA Rule 4210(f)(2). FINRA is not proposing any substantive changes to the margin requirements for listed or over-the-counter options; rather, the proposed rule change would make the rule easier to read by creating such definitions and using the terms consistently throughout the rule text.
Second, in proposed FINRA Rule 4210(f)(2)(I)(iv), FINRA proposes several clarifications to terminology where no margin may be required if the specified options or warrants are carried “short” in the account of a customer, against an escrow agreement, and either are held in the account at the time the options or warrants are written, or received in the account promptly thereafter. The proposed rule change would clarify that with respect to such options or warrants, an escrow agreement is used, in a form satisfactory to FINRA, issued by a third party custodian bank or trust company, and in compliance with the requirements of Rule 610 of The Options Clearing Corporation. The corresponding provisions in Incorporated NYSE Rule 431
Third, the proposed rule change would insert the term “aggregate” before exercise price throughout proposed FINRA Rule 4210(f)(2)(H) and (f)(2)(N) to clarify a calculation must be made in the strategies and spreads that are noted (
FINRA proposes to adopt Incorporated NYSE Rule 432(a) (Daily Record of Required Margin) as FINRA Rule 4220 in substantially the form it exists today. Incorporated NYSE Rule 432(a) sets forth the requirements for daily recordkeeping of initial and maintenance margin calls that are issued pursuant to Regulation T and the margin rules. There is no corresponding NASD rule. FINRA believes that this is an important requirement to heighten FINRA's ability to monitor members' margin call practices. In addition, Incorporated NYSE Rule 432(b) prohibits a member from allowing a customer to make a practice of satisfying initial margin calls by the liquidation of securities. However, this provision is substantially similar to the provision in proposed FINRA Rule 4210(f)(7), except that the proposed FINRA rule provision does not contain the exception for omnibus accounts. Accordingly, FINRA proposes to eliminate Incorporated NYSE Rule 432(b) and modify paragraph (f)(7) of FINRA Rule 4210 to add that the prohibition on liquidations shall not apply to any account carried on an omnibus basis as prescribed by Regulation T.
FINRA proposes to adopt NASD Rule 3160 (Extensions of Time Under Regulation T and SEC Rule 15c3-3) as FINRA Rule 4230 with one modification discussed below and delete the substantively similar Incorporated NYSE Rule 434 (Required Submission of Requests for Extensions of Time for Customers). NASD Rule 3160 and Incorporated NYSE Rule 434 set forth requirements governing members' requests for extensions of time, as permitted in accordance with Regulation T and SEC Rule 15c3-3(n). These rules provide that when FINRA is the designated examining authority for a member, requests for extensions of time must be submitted to FINRA for approval, in a format FINRA requires. In addition, NASD Rule 3160 requires each clearing member that submits extensions of time on behalf of broker-dealers for which it clears to submit a monthly report to FINRA that indicates overall ratios of requested extensions of time to total transactions that have exceeded a percentage specified by FINRA.
FINRA proposes to add a provision to proposed FINRA Rule 4230 to clarify that for the months when no broker-dealer for which a clearing member clears exceeds the extension of time ratio criteria (
As stated in the notice, FINRA represented that it will announce the implementation date of the proposed rule change in a
After careful consideration of the proposal, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The following Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits were filed under subpart B (formerly subpart Q) of the Department of Transportation's Procedural Regulations (
National Highway Traffic Safety Administration, DOT.
Request for public comment on proposed collection of information.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on the proposed collection of information.
This document describes a proposed collection of information under regulations in 49 CFR parts 591, 592, and 593 that pertain to the importation of motor vehicles and items of motor vehicle equipment that are subject to the Federal motor vehicle safety, bumper, and theft prevention standards.
Comments must be received on or before September 14, 2010.
You may submit comments [identified by DOT Docket No. NHTSA-2010-0094] by any of the following methods:
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Coleman Sachs, Office of Vehicle Safety Compliance (NVS-223), National Highway Traffic Safety Administration, West Building—4th Floor—Room W43-481, 1200 New Jersey Avenue, SE., Washington, DC 20590. Mr. Sachs' telephone number is (202) 366-3151. Please identify the relevant collection of information by referring to its OMB Control Number.
On August 31, 2007, NHTSA submitted to OMB a request for the extension of the agency's approval (assigned OMB Control No. 2127-0002) of the information collection that is incident to NHTSA's administration of the vehicle importation regulations at 49 CFR Parts 591, 592, and 593. On November 11, 2007, OMB notified NHTSA that it had approved this extension request through November 30, 2010. That approval was based on NHTSA submissions identifying information being collected on an annual basis from 63,818 respondents, expending 42,413 hours of effort, at a cost of $1,039,756. NHTSA wishes to file with OMB a request for that agency to extend its approval for an additional three years.
Since the information collection associated with NHTSA's importation program was last approved by OMB, no significant changes have taken place that impact the information collection and the assessment of its burden on affected members of the public. The U.S. dollar has not gained sufficient strength against foreign currencies to significantly increase the volume of vehicle imports that are subject to NHTSA's scrutiny. The focus of NHTSA's importation program is on vehicles that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS). These vehicles must be imported by a registered importer (RI) under bond to ensure that the vehicles are brought into compliance with applicable standards following importation. Nonconforming vehicles are entered under Box 3 on the HS-7 Declaration form. In calendar year 2002, 212,210 nonconforming vehicles were imported under Box 3. Over 97 percent of those vehicles were imported from Canada. In 2003, after the U.S. dollar began to weaken against the Canadian dollar, the volume of nonconforming vehicle imports under Box 3 was reduced by more than half, to 97,337 vehicles. The trend accelerated over the next five years, with 43,648 vehicles imported under Box 3 in 2004, 12,642 imported in 2005, 10,953 imported in 2006, 7,470 imported in 2007, and 6,311 imported in 2008. After the U.S. dollar had gained some strength against the Canadian dollar, the volume of imports under Box 3 increased in 2009 to 10,752 vehicles.
When NHTSA last requested OMB approval for the information collection associated with the vehicle importation program, the agency estimated that 11,000 nonconforming vehicles would be imported on an annual basis under Box 3, for which HS-7 Declaration forms and HS-474 DOT Conformance bonds would have to be furnished. The agency estimated that it would take five minutes to complete each HS-7 Declaration form, and six minutes to complete each HS-474 DOT Conformance bond, for a total expenditure of 2,017 hours to complete these forms. Given the continued reduction in nonconforming vehicle imports under Box 3 in recent years, future projections should assume an average of 8,200 vehicle imports per year. Relying on this figure, the hour burden associated with the completion of paperwork for these vehicles would be close to 1,503 hours (0.08333 hours to complete each HS-7 × 8,200 vehicles = 683 hours; 0.1 hours to complete each HS-474 × 8,200 vehicles = 820 hours; 683 + 820 = 1,503 hours). This represents approximately a 25 percent reduction in burden hours in comparison to the figures used when OMB approval was last obtained.
In this document, the agency has not focused exclusively on vehicles imported under the RI program, but has instead made a concerted effort to quantify the hour burden associated with the completion of paperwork for vehicles and equipment items imported in any legitimate way under NHTSA's regulations. As a consequence, we are providing particular information on the paperwork burden associated with the importation of conforming motor vehicles; the temporary importation of nonconforming vehicles for personal use by nonresidents and by foreign diplomatic and military personnel; the temporary importation of nonconforming vehicles for purposes of research, investigations, demonstrations or training, and other similar purposes; the importation of vehicles that are not primarily manufactured for on-road use; and other entry categories permitted under the agency's regulations. In addition, we have attempted to account for all forms, whether required or optional, and other types of information solicitations associated with vehicle and equipment importation that appear on the agency's Web site and in newsletters and other informational media that we employ to inform RIs and others of our requirements. Accounting for all paperwork burdens in this manner, we project that a total of 40,764 hours will be expended each year to complete paperwork associated with all aspects of NHTSA's program that regulates the importation of motor vehicles and equipment items subject to the FMVSS.
Under the Paperwork Reduction Act of 1995 (PRA), before an agency submits a proposed collection of information to OMB for approval, it must publish a document in the
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions;
(iii) How to enhance the quality, utility, and clarity of the information to be collected; and
(iv) How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
In compliance with these requirements, NHTSA is requesting public comment on the following proposed collection of information:
Section 30112(a) of Title 49, U.S. Code prohibits, with certain exceptions, the importation into the United States of a motor vehicle manufactured after the date an applicable Federal motor vehicle safety standard (FMVSS) takes effect, unless the motor vehicle was manufactured in compliance with the standard and was so certified by its original manufacturer. Under one of the exceptions to this prohibition, found at 49 U.S.C. 30141, a nonconforming vehicle can be imported into the United States provided (1) NHTSA decides that the vehicle is eligible for importation, based on its capability of being modified to conform to all applicable FMVSS, and (2) it is imported by a registered importer (RI), or by a person who has a contract with an RI to bring the vehicle into conformity with all applicable standards following importation. Regulations implementing this statute are found at 49 CFR parts 591 and 592.
The regulations require a declaration to be filed (on the HS-7 Declaration Form) at the time a vehicle is imported that identifies, among other things, whether the vehicle was originally manufactured to conform to all applicable FMVSS, and if it was not, to state the basis for the importation of the vehicle.
A nonconforming vehicle that NHTSA has decided to be eligible for importation can be imported by an RI, or by a person who has a contract with an RI to modify the vehicle so that it conforms to all applicable FMVSS, under Box 3 on the HS-7 Declaration form. As previously noted, the volume of imports under Box 3 initially declined and then slightly increased in recent years. In 2007, 7,740 vehicles were imported under Box 3, in 2008, 6,311 vehicles were imported, and in 2009, 10,572 vehicles were imported. Based on these figures, the agency projects that 8,200 vehicles will be imported each year under Box 3. Assuming that volume, the hour burden associated with the completion of the HS-7 Declaration form for these vehicles will be 683 hours (0.08333 hours to complete each HS-7 × 8,200 vehicles = 683 hours).
NHTSA's regulations also require an RI, among other things, to furnish a bond (on the HS-474 Conformance Bond form) at the time of entry for each nonconforming vehicle it imports, to ensure that the vehicle will be brought into conformity with all applicable safety and bumper standards within 120 days of entry or will be exported from, or abandoned to, the United States. A HS-474 Conformance Bond has to be furnished for each nonconforming vehicle imported under Box 3. Assuming an importation volume of 8,200 vehicles per year, the hour burden associated with the completion of the HS-474 will be 820 hours (0.1 hours to complete each HS-474 × 8,200 vehicles = 820 hours).
After modifying the vehicle to conform to all applicable standards, the RI submits a statement of conformity (on a suggested form) to NHTSA, which will then issue a letter permitting the bond to be released if the agency is satisfied that the vehicle has been modified in the manner stated by the RI. The statement of conformity contains a check off list on which the RI identifies the FMVSS and other agency requirements to which the vehicle conforms as originally manufactured and the FMVSS and other requirements to which the vehicle was modified to conform. The RI also attaches to the statement of conformity documentary and photographic evidence of the
A conformity package must be submitted for each nonconforming vehicle imported under Box 3. Because the Canadian motor vehicle safety standards are identical in most respects to the FMVSS, there are relatively few modifications that need to be performed on a Canadian-certified vehicle to conform it to the FMVSS and the conformity packages that are submitted on these vehicles are considerably less comprehensive than those submitted for vehicles from Europe, Japan, and other foreign markets. The agency estimates that it would take the average RI no more than 30 minutes to collect information for, and assemble, a conformity package for a Canadian-certified vehicle.
Generally, more modifications are needed to conform a non-Canadian vehicle to the FMVSS. To properly document these modifications, more information must be included in the conformity package for a non-Canadian vehicle than is required for a Canadian-certified vehicle. The agency estimates that it would take an RI approximately twice as long, or roughly one hour, to compile information for, and assemble, a conformity package for a typical non-Canadian vehicle.
Of the 7,794 nonconforming vehicles imported under Box 3 in 2007, 7,434, or over 95 percent, were Canadian market and 360, or under five percent, were from markets other than Canada. Of the 6,311 nonconforming vehicles imported under Box 3 in 2008, 5,775, or roughly 91.5 percent, were Canadian market and 536, or roughly 8.5 percent, were from markets other than Canada. Of the 10,751 nonconforming vehicles imported under Box 3 in 2009, 10.259, or over 95 percent, were Canadian market and 492, or less than five percent, were from markets other than Canada. Assuming this trend continues in future years, the agency estimates the hour burden associated with the submission of conformity packages on Canadian-certified vehicles to be 3,895 hours per year (8,200 vehicles × 95 percent or 0.95 = 7,790 vehicles; 7,790 vehicles × 0.5 hours per vehicle = 3,895 hours). The agency estimates the hour burden associated with the submission of conformity packages for non-Canadian vehicles to be 410 hours per year (8,200 vehicles × 5 percent or 0.05 = 410 vehicles; 410 vehicles × 1.0 hours per vehicle = 410 hours). Adding these figures yields an estimated burden of 4,305 hours per year for the entire RI industry to compile and submit conformity packages to NHTSA on nonconforming vehicles imported under Box 3 (3,895 hours + 410 hours = 4,305 hours).
As previously noted, a motor vehicle that was not originally manufactured to comply with all applicable FMVSS cannot be lawfully imported into the United States on a permanent basis unless NHTSA decides that the vehicle is eligible for importation, based on its capability of being modified to conform to those standards. Under 49 U.S.C. 30141, the eligibility decision can be based on the nonconforming vehicle's substantial similarity to a vehicle of the same make, model, and model year that was manufactured for importation into, and sale in the United States, and certified as complying with all applicable FMVSS by its original manufacturer. Where there is no substantially similar U.S.-certified vehicle, the eligibility decision must be predicated on the vehicle having safety features that are capable of being modified to conform to the FMVSS, based on destructive crash test data or such other evidence that the agency may deem adequate. The agency makes import eligibility decisions either on its own initiative, or in response to petitions filed by RIs. Only a small number of RIs (currently about 13 out of the 70 RIs registered with the agency) ever submit import eligibility petitions. Many of these businesses have, over, the years, submitted multiple petitions to the agency. The agency estimates that it would take the typical RI that petitions the agency roughly two hours to complete the paperwork associated with the submission of a petition for a vehicle that has a substantially similar U.S.-certified counterpart, and roughly twice as long, or four hours, to complete the paperwork associated with the submission of a petition for a vehicle that lacks a substantially similar U.S.-certified counterpart. In 2007, 22 import eligibility petitions were submitted to the agency. Of these, 17, or 77 percent, were for vehicles with substantially similar U.S.-certified counterparts and 5, or 23 percent, were for vehicles for which there were no substantially similar U.S. certified counterparts. In 2008, 15 import eligibility petitions were submitted to the agency. Of these, 14, or 93 percent, were for vehicles with substantially similar U.S.-certified counterparts, and 1, or 7 percent, were for vehicles for which there were no substantially similar U.S.-certified counterparts. In 2009, 12 import eligibility petitions were submitted to the agency. Of these, 9, or 75 percent, were for vehicles with substantially similar U.S.-certified counterparts, and 3, or 25 percent, were for vehicles for which there were no substantially similar U.S.-certified counterparts. Assuming this trend continues in future years, the agency estimates that roughly 13 import eligibility petitions will be submitted each year, 80 percent of which, or 10 petitions, will be for vehicles with substantially similar U.S.-certified counterparts, and 20 percent of which, or 3 petitions, will be for vehicles lacking substantially similar U.S.-certified counterparts. Based on these figures, the agency estimates that the hour burden for the paperwork associated with the submission of import eligibility petitions to be 32 hours per year (10 petitions × 2 hours per petition = 20 hours; 3 petitions × 4 hours per petition = 12 hours; 20 hours + 12 hours = 32 hours). The agency is considering an amendment to its regulations that would require an import eligibility petition to include the type classification (
In 2007, a total of 122,960 vehicles were imported under Box 8. In 2008, 175,282 vehicles were imported under that box. In 2009, 99,524 were imported. Averaging those figures, the agency projects that roughly 135,000 vehicles will be imported under Box 8 in each of the next three years. The vast majority of these vehicles were off-road motorbikes or all-terrain vehicles that were imported in bulk shipments for which a single declaration was filed. NHTSA received only 57 HS-7 Declaration forms for vehicles imported under Box 8 in 2007, 16 for vehicles imported in 2008, and 15 for those imported in 2009. The remainder of the entries were made electronically. Based on the assumption that each entry
Also on the agency's Web site is an application form that can be used to request NHTSA to permit a particular vehicle to be imported for purposes of show or display once the agency has decided that the vehicle is of a make, model, and model year that is eligible for importation for those purposes. Certain restrictions apply to vehicles that are imported for purposes of show or display. Among those is a requirement that the vehicle not be driven in excess of 2,500 miles per year. The application specifies the terms of the importation and makes provision for the applicant to agree to those terms. In 2007, the agency received 15 applications to import specific vehicles for purposes of show or display. In 2008, the agency received 13 such applications. In 2009, the agency received 8. Averaging those figures, the agency estimates that it will receive roughly 12 applications in each of the next three years. Assuming that it will take the typical applicant up to one hour to compile and assemble the materials needed to support each application, the agency estimates that up to 12 hours will be expended in this activity in each of those years.
The latter records are referred to as a “conformity package.” Most conformity packages submitted to the agency covering vehicles imported from Canada are comprised of approximately six sheets of paper (including a check-off sheet identifying the vehicle and the standards that it was originally manufactured to conform to and those that it was modified to conform to, a statement identifying the recall history of the vehicle, a copy of the HS-474 conformance bond covering the vehicle, and a copy of the mandatory service insurance policy obtained by the RI to cover its recall obligations for the vehicle). In addition, most conformity packages include photographs of the vehicle, components that were modified or replaced to conform the vehicle to applicable standards, and the certification labels affixed to the vehicle.
Approximately 120 conformity packages can be stored in a cubic foot
RIs are also required under 49 CFR 592.6(b) to retain a copy of the HS-7 Declaration Form furnished to Customs at the time of entry for each nonconforming vehicle for which they submit a conformity package to NHTSA. Paper HS-7 Declaration Forms are only filed for a small fraction of the nonconforming vehicles imported into the United States. Customs brokers file entries for most nonconforming vehicles electronically by using the Automated Broker Interface (ABI) system. For example, in Calendar year 2006, 10,953 ABI entries were made for nonconforming vehicles imported into the United States under Box 3, and only 440 paper HS-7 Declaration Forms (representing less than four percent of the total) were filed for such vehicles. Because HS-7 Declaration Forms are filed for only a small fraction of the nonconforming vehicles that are imported by RIs, the storage requirement for those records can have no more than a negligible cost impact on the industry. Because the remaining records that RIs are required to retain under 49 CFR 592.6(b) may be stored electronically, the costs incident to the storage of those records should also be negligible.
RIs who conduct recall campaigns to remedy a safety-related defect or a noncompliance with an FMVSS determined to exist in a vehicle they import must report the progress of those campaigns to NHTSA. The agency estimates that it should take each RI that is required to conduct a safety recall campaign approximately one hour to compile information for and prepare each of the two reports it would be required to submit to the agency detailing the progress of the recall campaign. Since vehicle manufacturers in most cases include vehicles imported by RIs in their own recall campaigns, it is likely that very few of these reports would have to be prepared or submitted by RIs.
NHTSA relies on the information provided by RIs and applicants for RI status to obtain and renew their registrations so that it can better ensure that RIs are meeting their obligations under the statutes and regulations governing the importation of nonconforming vehicles and can make more informed decisions in conferring RI status on applicants and in permitting RI status to be retained by those currently holding registrations. In this manner, those lacking the capability to responsibly provide RI services, or who have committed or are associated with those who have committed past violations of the vehicle importation laws, can be more readily denied registration as an RI, or if they already hold such a registration, have that registration suspended or revoked when circumstances warrant such action.
• The 70 RIs who are currently registered with NHTSA and import nonconforming vehicles under Boxes 3 and 13;
• The roughly 1,650 individuals who import each year Canadian-certified vehicles for personal use under Box 2B;
• The several hundred original manufacturers who import conforming motor vehicles and equipment items under Box 2a; nonconforming vehicles or equipment intended for export under Box 4; nonconforming vehicles and equipment on a temporary basis for purposes of research, investigations, or other reasons specified under Box 7; vehicles and equipment requiring further manufacturing operations under Box 9; and equipment subject to the Theft Prevention Standard under Box 11.
• The several hundred dealers, distributors, and individuals who import off-road vehicles such as dirt bikes and all-terrain vehicles or ATVs, as well as other vehicles that are not primarily manufactured for on-road use under Box 8.
• The several hundred nonresidents of the United States and foreign diplomatic and military personnel who temporarily import nonconforming vehicles for personal use under Boxes 5, 6, and 12.
44 U.S.C. 3506(c); delegation of authority at 49 CFR 1.50 and 501.8(f).
Office of Financial Stability (OFS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the
Written comments should be received on or before September 14, 2010 to be assured of consideration.
Direct all written comments to: Department of the Treasury, Daniel Abramowitz, 1500 Pennsylvania Avenue, NW., Washington, DC 20220; (202) 927-9645.
Requests for additional information or copies should be directed to the address above.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); Federal Deposit Insurance Corporation (FDIC); and Office of Thrift Supervision (OTS), Treasury (collectively, the Banking Agencies or Agencies).
Joint submission of information collection renewal to OMB for review and approval under the Paperwork Reduction Act.
The OCC, FDIC and OTS as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to comment on the proposed renewal of the interagency Transfer Agent and Amendment Form, as required by the Paperwork Reduction Act of 1995. To renew this information collection, the OCC, FDIC, and OTS seek additional public comment regarding this notice, which is the second of two notices required by the PRA, and will seek OMB review of, and clearance for, the information collection discussed herein. The Board has approved this information collection under its delegated authority from OMB. The Banking Agencies may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
Comments must be submitted on or before August 16, 2010.
Interested parties are invited to submit written comments to any or all of the Agencies. All comments, which should refer to the OMB control number(s), will be shared among the Agencies.
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Additionally, commenters may send a copy of their comments to the OMB desk officer for the Agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street, NW., Washington, DC 20503, or by fax to (202) 395-6974.
For further information about the proposed information collection discussed in this notice, please contact any of the agency clearance officers whose names appear below.
The Banking Agencies are proposing to extend for three years, without revision, the uniform interagency Transfer Agent Registration and Amendment Form. The Securities Exchange Act of 1934 (the Act) requires any person acting as a transfer agent to register as such and to amend registration information when it changes.
This information collection is mandatory: Sections 17A(c), 17(a)(3), and 23(a) of the Act, as amended (15 U.S.C. 78q-1(c), 78q(a)(3), and 78w(a)) (Board, FDIC and OTS); and Sections 12, 13, 14(a), 14(c), 14(d), 14(f), and 16 of the Act, as amended (15 U.S.C. 781, 78m, 78n(a), 78n(c), 78n(d), 78n(f), and 78p (OCC). Additionally, the Board's Regulation H (section 208.31(a)) and Regulation Y (section 225.4(d)), as well as § 341.3 of the FDIC's Rules and Regulations implement the provisions of the Act. The registrations are public filings and are not considered confidential.
Section 17A(c) of the Act requires all transfer agents for securities registered under section 12 of the Act to register “by filing with the appropriate regulatory agency * * * an application for registration in such form and containing such information and documents * * * as such appropriate regulatory agency may prescribe as necessary or appropriate in furtherance of the purposes of this section.” In general, an entity performing transfer agent functions for a security is required to register if the security is registered on
The Agencies invite comment on:
(a) Whether the collections of information are necessary for the proper performance of the Agencies' functions, including whether the information has practical utility;
(b) The accuracy of the Agencies' estimates of the burden of the information collections, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be shared among the Agencies. Unless otherwise afforded confidential treatment pursuant to Federal law, all comments will become a matter of public record.
The National Environmental Policy Act of 1969 (NEPA), CEQ Regulations at 40 CFR parts 1500 through 1508, The Valles Caldera Preservation Act, Public Law 106-248, NEPA Procedures for the Valles Caldera National Preserve, 68 CFR 42460.
Valles Caldera Trust.
Notice of Intent to prepare an Environmental Impact Statement.
The Valles Caldera Trust (VCT) a wholly owned government corporation empowered to provide management and administrative services for the Valles Caldera National Preserve (VCNP) intends to prepare an Environmental Impact Statement (EIS) to analyze and disclose the potential impacts of a proposed Landscape Restoration and Management Plan (LRMP) which includes mechanical treatments, prescribed burning, management of lightning caused wildland fires (wildland fire use), restoration or riparian areas, closure and maintenance of roads and eradication of noxious weeds and invasive plants. A combination of these management activities are being proposed over the next 10-years as follows:
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4. In combination with road management actions as described above, the trust is also proposing to restore wetland and riparian areas throughout the preserve. The wetland and wet meadow systems containing the preserves riparian areas, and streams comprise just over 6,800 acres, mostly within the open valle systems. Restoration activities would include stream bank and channel restoration to address site specific erosion, placement of log and fabric dams, gully plugs, or Zuni bowl techniques to protect and restore wetlands. Willow plantings or placement of sod plugs are among techniques proposed for improving stream bank integrity.
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Based on initial analysis and public comments, alternatives to the proposed action will be developed. Action alternatives will likely vary in the acres treated by wildland fire and mechanical methods but also may include other actions not currently being considered.
The action is needed to meet the purposes and goals identified in the Valles Caldera Preservation Act (
This scoping process will culminate in the preparation of a draft EIS which will be made available for public comment. To ensure that the Trust has an opportunity to fully consider public comments in the development of the alternatives and determining the scope of the analysis and to facilitate the prompt preparation of the draft EIS, comments regarding the proposed Landscape Restoration and Management Plan, are requested on or before August 18, 2010.
To receive future notices regarding planning and decision making for the LRMP, including the times and locations of public meetings, subscribe to the Trust's user maintained mailing list. To subscribe, access our Web site,
You may submit comments on the proposed LRMP by any of the following methods:
Contact Marie E. Rodriguez, Natural Resource Coordinator at
The Valles Caldera National Preserve (VCNP) is located in north-central New Mexico in the Jemez Mountains, primarily in Sandoval County with a small inclusion in Rio Arriba County. The VCNP was acquired by the Federal Government in 2000 with the signing of the Valles Caldera Preservation Act (Pub. L. 106-248). Besides acquisition of the land, the law established the Valles Caldera Trust, a wholly owned government corporation and non-profit 501(c) 1 organization to manage the Preserve. Management of the VCNP is considered an experiment in public land management. The purposes and goals from Public Law 106-248 that are being specifically addressed in the proposed LRMP include: the protection and preservation of the preserve's natural and cultural resources and values, the multiple use and sustained yield of timber and forage resources, enhancing the objectives on surrounding National Forest System land, and providing benefits to local communities and businesses.
Since 2002, the Trust has been gathering data and information in order to comprehensively assess the existing condition of preserve's resources. This effort has yielded a 6-meter resolution map of the preserve's ecosystems, a delineation of individual stands as defined by structure and composition, a preserve-wide stratified sampling of the preserve's forests which inventoried and permanently located nearly 600 forest field plots. Other inventory and monitoring activities has included the establishment of 41 permanent monitoring sites in the preserve grasslands and riparian areas, 2 sites that measure forest processes (carbon and water cycling), 5 climate stations, and stations that measure bother water quality and quantity as various locations. The trust has also completed inventories to identify the flora and fauna species represented on the preserve, threatened and endangered wildlife species and habitats, and studies to understand the population and relationships of key wildlife species. These inventories and studies have been undertaken by the trust in collaboration with other Federal and well as state agencies, as well as many universities, non-government organizations, and volunteers. This comprehensive baseline data provides the basis for planning and implementing a LRMP supported by a systematic approach to adaptive management as required in the NEPA procedures of the trust.
Beginning in December 2008, the Valles Caldera Trust, Santa Fe National Forest, New Mexico Forest and Watershed Restoration Institute, and The Nature Conservancy began meeting to strategize a collaborative effort to manage and restore over 200,000 acres in the upper Jemez River Watershed. Through this collaborative effort we were able to work across boundaries, sharing data and specialists in support of assessing the existing conditions. Further efficiencies can be gained through collaboratively implementing management actions as well as monitoring and evaluating activities across boundaries.
The restoration partners worked together to expand their collaboration to federal, state and local agencies, non-government organizations, and individual citizens interested in forest restoration and management in the Jemez Mountains. A three day workshop was held February 9-11, 2010 in Santa Fe, New Mexico to review and affirm the current assessments and develop a strategy to collaboratively restore the ecosystems within the 210,000 acre landscape including all of the VCNP. The strategy included goals and objectives for restoration, types of restoration treatments that should be considered, the priority of treatments, as well as a strategy for monitoring and evaluating the effectiveness and effects of treatments. This strategy was submitted for funding under the Collaborative Forest Landscape Restoration Program. Information on that program as well as the strategy
Department of Veterans Affairs.
Notice of meeting.
The Department of Veterans Affairs (VA) will hold the Veterans Benefits Administration (VBA)/Veterans Health Administration (VHA) Musculoskeletal Forum: Improving VA's Disability Criteria to capture public comment and current medical science information from presentations made by subject matter experts. VA plans to use this information to update the sections of VA's Schedule for Rating Disabilities (VASRD) that pertain to diseases and injuries of the musculoskeletal system. See 38 CFR 4.40-4.73. Specifically, diagnostic code descriptors and evaluation criteria will be discussed. Contingent upon available capacity and time, individuals wishing to make oral statements will be accommodated on a first-come, first-served basis.
The meeting will be held on Tuesday, August 10, 2010, from 7:30 a.m. to 4:30 p.m.
The meeting will be held at the Capital Hilton, located at 1001 16th Street, NW., in Washington, DC.
Mr. Brad Tuttle, VASRD Coordinator, Compensation and Pension Service, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Anyone wishing to attend the meeting or seeking additional information may also contact Mr. Tuttle at (202) 461-9037 or
Office of the Secretary, DOT.
Final rule.
The U.S. Department of Transportation requires U.S. air carriers to submit their recurrent financial, traffic, operational and consumer data reports electronically via the Internet using the comma separated value (CSV) file format or a PDF file for reports that are not entered into a database such as signed certifications, transmittal letters, and annual reports. This rule will enhance security of the data submissions, eliminate air carriers' fax and mailing costs, eliminate the need for the Department to manually enter hardcopy data submissions, and provide reporting air carriers with immediate notification and a receipt from the Department that the report was received. This action is taken on the Department's initiative.
Bernie Stankus, Office of Airline Information, RTS-42, Bureau of Transportation Statistics, Research and Innovative Technology Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001, Telephone Number (202) 366-4387, Fax Number (202) 366-3383 or e-mail
A copy of the proposed rule, copies of the public comments, and an electronic copy of this final rule may be downloaded at
Receiving and processing aviation data are essential business processes for the Department of Transportation (DOT). To increase data collection and processing efficiencies and reduce the burden and costs of the filing process for both the air carriers and the government, all recurrent aviation data, that are collected by the Research and Innovative Technology Administration's (RITA's) Bureau of Transportation Statistics (BTS), must be submitted electronically (e-filing). The new e-filing system is designed to be user friendly. E-filing via the Internet is more secure than submitting files as attachments to e-mails. Carrier-designated personnel will be given a user name and password that will enable them to access the BTS e-filing system and meet their reporting obligations by either attaching a comma separated value or PDF file. To assist U.S. and foreign air carriers that may not be familiar with the CSV file format, BTS is providing on its Web site downloadable Excel forms that the air carriers may complete and save in the CSV format to meet the filing requirements. A significant advantage of e-filing is that it does not have the size limit constraints encountered by attachments to e-mail submissions. E-filing provides the submitters with a confirmation acknowledgement and a receipt that the filing has been received by BTS. E-filing will eliminate the need for BTS to manually enter hardcopy records into its various databases. E-filing also reduces the possibility of human error in manual data entry.
The Department issued a notice of proposed rulemaking to require airlines to submit their recurrent financial, traffic, operational, and consumer reports to BTS via the Internet on December 20, 2006, (71 FR 76226). Comments were received from Air Transport Association of America, Inc. (ATA); United Parcel Service, Co. (UPS); American Airlines, Inc.; Eugene M. Schulman; Miller, Hamilton, Snider & Odom, LLC; and Ameristar Air Cargo. On January 12, 2007, following a telephonic inquiry by Ruel Lacanienta, a senior analyst with American Airlines, American Airlines sent its comments to RITA in an e-mail submission. RITA placed the American Airlines comments in the docket.
The comments, with the exception of Miller, Hamilton, Snider & Odom, fully support the Department's proposal to collect aviation data via the Internet.
ATA believes that: (1) BTS should be able to release aviation data to the public on a timelier schedule by eliminating the need to manually enter data. (2) Since the Department has proposed a phased e-filing requirement for the various data collections, carriers should be given 90-days advance notice with the relevant technical and process details to comply with the filing deadline. (3) The Department should incorporate a data submission grace period as new data sets become subject to e-filing in case of unforeseen problems. (4) Respondents should receive immediate confirmation of data transmittal success or failure. (5) Confidentiality in the data transfer process should be maintained and the Department should ensure its ability to hold certain data elements confidential, as is done today when specific types of data are filed with petitions for confidential treatment. (6) The Department should hold a stakeholder meeting before the new requirements are implemented.
The Department is in agreement with most of ATA's comments. BTS anticipates a reduction in the time to process the quarterly financial data. However, the reduction in the processing time may not be immediate. We anticipate that the reduction should be realized within three reporting cycles. International T-100 and T-100(f) traffic data are restricted from public release for a 6-month period; therefore, while e-filing will reduce processing time, e-filing will not advance the public release of international traffic data. U.S. air carrier traffic data between two foreign points are restricted from public release for three years, so e-filing will not impact the release of these data. We do not anticipate reducing the lag time for the release of on-time data, which are already released on an accelerated basis.
We agree with the ATA request for a 90-day lead time for implementation of the rules requirements for e-filing. The reporting elements are not changing and the Department will only be requiring the use of a comma separated values (CSV) or portable document format (PDF) file format in submitting the same data elements that are now being reported. CSV is a delimited data format that has fields/columns separated by the comma character and records/rows separated by new lines. The Department believes that this change in reporting does not represent a significant burden for the affected air carriers. The 90-day lead time will allow carriers to test their new data transmission procedures.
The ATA commented that there could be “unforeseen problems” with the e-filing system and asked DOT incorporate a grace period for each filing deadline. Section 385.19(f), delegates the Director of the Office of Airline Information (OAI), BTS, authority to grant air carriers extensions of the due dates for filing required aviation reports. In response to the ATA comment, the Department is amending part 385.19(f) to include foreign air carriers to that delegated authority so that foreign air carriers may also file a request for an extension. This will help assure that the administrative process provides all carriers sufficient lead time to convert to the CSV format. If an air carrier or
As to ATA's comment that respondents should receive immediate confirmation of data transmittal success or failure, the e-filing system is designed so that the submitter of reports will receive an immediate confirmation that the reports were received. It should be noted that carriers that submit an “acceptable” report may later be directed to revise the report due to errors identified in an in-depth data quality review performed by the BTS data administrators.
In its comments, ATA noted that confidentiality in the data process should be maintained and the Department should be able to ensure that certain data elements remain confidential, as is done today.
The Department agrees with ATA that the current treatment of confidential data should be retained in the new system for transmitting data. Also, UPS requests clarification of the treatment of confidential information including the airframe and aircraft engine cost data reported on Form 41, Schedules B-43
The e-filing system will not adversely affect the public withholding of confidential data. It will, however, result in a burden reduction for air carriers requesting confidential treatment, by relieving them of the requirement to submit a redacted version of their data submission. Under the e-filing system, the party requesting confidential treatment will submit a formal motion for confidential treatment to both DOT Dockets and the appropriate DOT Group E-mail Address for the affected data base. These e-mails will alert the public, through Dockets, that confidential treatment has been requested and the data base administrator that special handling of the data submission is required. Motions for confidential treatment must continue to adhere to the requirements found in DOT's Rules of Practice in Proceedings, which are contained in Title 14 of the Code of Federal Regulations Part 302.12, Objections to public disclosure of information. After submitting the motion for confidential treatment, the air carrier will transmit a complete e-file data submission that contains both confidential and non-confidential data. BTS will then validate the entire file and withhold the designated confidential data from public release pending a decision from DOT on the carrier's motion.
The E-mail Addresses for contacting the data base administrators are:
The Department agrees with ATA's comment as to the value of holding a stakeholders meeting prior to the initial submission of data. We will schedule a meeting for reporting carriers at the DOT Headquarters Building and announce the meeting in the
American Airlines supports the Department's e-filing initiative and requests that the Department offer the secure file transfer protocol (SFTP) for delivery of large files to reduce the manual intervention required for large files. While this mode of delivery is not currently available due to higher workload priorities and limited staff resources, BTS does plan to implement the SFTP mode of delivery in the future.
The Director of Operations at Ameristar Air Cargo commented that e-filing is a long overdue convenience for the airlines.
Lester Bridgeman of the law firm Miller, Hamilton, Snider & Odom commented that the notice of proposed rulemaking (NPRM) includes no specific e-filing formats for foreign air carriers. Mr. Bridgeman has concerns that the NPRM may not be in compliance with 5 U.S.C. sec. 553(b)(3) which requires a NPRM to provide either the term or the substance of the proposed rule or a description of the subjects and issues involved.
DOT believes it met the requirements of 5 U.S.C. 553(b)(3). In the NPRM, the Department proposed two options for foreign air carriers to submit their T-100(f) reports via the Internet. The carriers could either complete the schedule on a Web-based form, or they could attach a file when they log into the new system. The substance of the NPRM was that carriers would be required to submit their reports to DOT through a secured Internet site. There is no change to the underlying reporting elements.
In the final rule, BTS decided that foreign carriers will be required to submit their reports through a secured Internet site using a comma separated value (CSV) file format. To assist foreign air carriers that may be unfamiliar with CSV files, BTS is placing a downloadable spreadsheet with the required data elements for the Schedule T-100(f) report on the RITA Web site along with documentation on the required file format and file naming convention. Foreign carriers may populate the spreadsheet and save it in the CSV format, and attach the saved file for e-filing.
The schedule for implementing e-filing is:
(1) Part 234 Airline Service Quality Performance (ASQP) reports (both on-time data and mishandled baggage reports—due November 15, 2010.
(2) Part 217 T-100(f)—Foreign Air Carrier Traffic Data by Nonstop Segment and on-Flight Market—due November 30, 2010.
(3) Part 241 T-100—U.S. Air Carrier Traffic and Capacity Data by Nonstop Segment and On-Flight Market—due November 30, 2010.
(4) Part 241 Passenger Origin-Destination Survey Report—due February 15, 2011.
(5) Part 241 Form 41 schedules:
(6) Part/Form 251—Report of Passengers Denied Confirmed Space—due January 30, 2011.
(7) Part/Form 291—A Statement of Operations for Section 41103 Operations—due February 10, 2011.
(1) Part/Form 248—Audit Reports—the earliest carriers are required to report via e-filing is February 15, 2011.
(2) Part 298 Form 298-C, Schedules F-1—Report of Financial Data, and F-2—Report of Aircraft Operating Expenses and Related Statistics—May 10, 2011.
Part 248 Audit Reports are due at BTS within 15 days after the due date of the appropriate periodic BTS Form 41 report filed for the 12-month period covered by the audit report or the date the accountant submits an audit report to the air carrier, whichever is later.
Carriers may volunteer to start e-filing before the dates listed above by contacting the e-mail address for the data base administrator. BTS welcomes carriers to submit a trial version of e-filing before the initial due date for required e-filing submission. In order to retain consistent data, carriers will submit their reports both by e-filing and their current mode of delivery until one cycle of the e-filed report is completed successfully. Once completed successfully, e-filing will be the only accepted means of delivery.
Selected Alaskan carriers are currently participating in an e-filing pilot program for submitting their T-100 traffic data. These carriers are allowed to logon to the RITA Web site and electronically submit T-100 market and/or segment data. The Web application uploads the files to an isolated secure location on a Pilot Server, logs the receipt, and sends an acknowledgement to the submitter.
Depending on the form, an air carrier will attach either a CSV or PDF file to meet its reporting obligation. For “free form” reports, such as the BTS Schedule B-12, Statement of changes in Financial Position, and P-2 Notes to BTS Form 41, carriers will attach a PDF file to meet their reporting obligations. The signed certifications for Forms 41 and 298-C, the On-time Data and Mishandled Baggage Reports certification and transmittal letters, and the transmittal letter for the Passenger Origin-Destination Survey will also be delivered as PDF files.
An Accounting and Reporting Directive that specifies the required file format is being published with the final rule.
The e-filing system performs user authentication, validates filer information and checks the file name extension for the format of the data to be uploaded, uploads the files to an isolated secure location, logs the receipt of the data report, and transmits an acknowledgement of receipt to the sender. The URL of the BTS E-Filing Center is
In updating the regulatory language in Appendix A to SEC. 19-7—INSTRUCTIONS TO AIR CARRIERS FOR COLLECTING AND REPORTING PASSENGER ORIGIN-DESTINATION SURVEY STATISTICS, the Department is removing the language in the Appendix which referred to “magnetic tapes” and ADP (automatic data processing) instructions. Technology advances have rendered this regulatory language obsolete and thus, the Department is removing the obsolete language. In addition, in updating the regulatory language in 14 CFR Part 241.25, the Department is removing the portion of the Appendix that contains instructions pertaining to magnetic tape specifications, record layouts for microcomputer diskettes and mainframe reporting. Technology advances have rendered this regulatory language obsolete and thus, the Department is removing the obsolete language. The Department is moving the two remaining paragraphs, the discussion of reporting concept (paragraph l) and joint-service operations (paragraph i), to 14 CFR 241.19-2.
Under Executive Order No. 12866, (58 FR 51735, October 4, 1993) the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
It has been determined that this proposed action is not a “significant regulatory action” under Executive Order No. 12866 and was not reviewed by OMB.
This action does not add any additional reporting burden to air carriers, as the reported elements are unchanged. In fact, this rule will lessen the compliance costs for Respondents by reducing Respondents' mailing costs. In addition, this action will enhance data security and save government costs by eliminating the need for the BTS to manually enter hardcopy data submissions. Finally, this rule will provide air carriers with immediate submission notification and a receipt that the BTS has received the data.
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.
I certify that no small entity will experience a significant adverse economic impact from this rule.
This rule has been analyzed in accordance with the principles and criteria in Executive Order 12612 (“Federalism”) and BTS has determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
This act prohibits agencies from setting standards that create unnecessary obstacles to foreign commerce of the United States. The department has taken special steps to ease the transition for foreign air carriers to e-submission. BTS is providing a Web application which the carrier may use to save data in the CSV format for e-submission. E-submission should reduce air carrier compliance costs.
This Act requires agencies to prepare written assessment of costs, benefits, and other effects of a proposed rule that include a Federal mandate likely to result in the expenditure by State, local, or Tribal government. This rule imposes no expenditures on State, local, or Tribal government.
A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda each April and October. The RIN Number 2139-AA11 contained in the heading of this document can be used to cross reference this action with the Unified Agenda.
The benefits of e-filing primarily lie in business process improvement, data quality improvement, strengthened security, and automatic notification to late filers. As the system rolls out, the following savings are anticipated:
Air carriers that use a delivery service to deliver the required reports to BTS will save the cost of that service. BTS estimates the industry savings at $1,095 annually (100 submissions at an average cost of $10.95 per submission). Most carriers will use their Web browsers to download their reports to BTS, thus, reducing work-time by eliminating the need to type hard copy reports and address and package the submission.
RITA/BTS savings are estimated at one fourth of a full-time employee (FTE) for a data administrator or approximately $65,000 (GS 11 salary and operations cost) and an additional $165,000 savings in data processing and data administration manually keying data.
Qualitatively, the e-filing project aims to lay the foundation for continuous data quality management through process improvements utilizing automatic editing of the electronically submitted data. Other benefits of the new system are: (1) Filings will be performed electronically using an e-filing portal. (2) There will be a standardized CVS file format. (3) Carriers will receive an automated receipt when files are submitted. (4) BTS will reduce the time needed to load carrier submissions into data bases. (5) There will be an automatic log and submission record management system, including e-mail capability and a Web application to display the submission status, track the submitted data (including originals and revisions), and log in major events in processing. (6) Automatic e-mails will alert air carriers when they have a delinquent report.
Administrative practices and procedures, Air carriers, Air taxis, Consumer Protection, Freight, Reporting and recordkeeping requirements, and Uniform system of accounts.
49 U.S.C. 329 and chapters 41102, 41301, 41708, and 41709.
(e) Reports required by this section shall be submitted to the Bureau of Transportation Statistics in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
The revisions read as follows:
(a) Reports required by this section shall be submitted to the Bureau of Transportation Statistics in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
(b) The detailed instructions for preparing Schedule T-100(f) are contained in the appendix to this section.
(a) * * *
(3) Reports required by this section shall be submitted to the Bureau of Transportation Statistics in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
(e) Preparation of Schedule T-100 (f):
49 U.S.C. 329 and chapters 41101, 41708, and 41709.
Reports required by this section shall be submitted to the Bureau of Transportation Statistics in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
(c) Reports required by this section shall be submitted to the Bureau of Transportation Statistics in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
(d) Schedule T-100 collects summarized flight stage data and on-
(e) The Department may authorize joint-service operations between two direct air carriers. Examples of these joint-services are blocked-space agreements, part-charter agreements, code-share agreements, wet-lease agreements, and other similar arrangements. Joint services operations are reported by the air carrier in operational control of the aircraft. The traffic moving under these agreements is reported on Schedule T-100 the same way as any other traffic on the aircraft.
(f) Any questions regarding T-100 should be e-mailed to
The addition and revisions read as follows:
(a) * * * Copies of these
(b) Reports required by this section shall be submitted to the Bureau of Transportation Statistics in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
All questions, comments, extension and waiver requests should be e-mailed to
C.
D. [Reserved]
E. All reports shall be filed with the Bureau of Transportation Statistics in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
B.
(i) Carriers shall submit Schedule B-12 in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
(a) This schedule shall be filed quarterly by all Group II and Group III air carriers and Group I air carriers with annual revenues of $20 million or more. Carriers shall submit Schedule P-2 in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
49 U.S.C. 329 and chapters 41102, 41708, and 41709.
(c) Carriers shall submit their audit reports or their statement that no audit was performed in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
49 U.S.C. 329 and chapters 41102, 41301, 41708, 41709, and 41712.
(b) Reports required by this section shall be submitted to the Bureau of Transportation Statistics in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airlines Information.
49 U.S.C. 329 and chapters 41103, 41708 and 41709.
(a) * * *
(2) Reports required by this section shall be submitted to the Bureau of Transportation Statistics in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
(e) * * *
(2)
49 U.S.C. 329 and chapters 41102, 41708, and 41709.
The revision reads as follows:
(c) Reports required by this section shall be submitted to the Bureau of Transportation Statistics in a format specified in accounting and reporting directives issued by the Bureau of Transportation Statistics' Director of Airline Information.
49 U.S.C. 329 and chapters 40101, 41101, 41301, and 41701.
(f) Grant or deny a request by an air carrier or foreign air carrier for an extension of a filing date for reports required by subchapters A and D of this chapter.
The following appendix will not appear in the Code of Federal Regulations.
This Accounting and Reporting Directive gives detailed instructions for the file format for submitting recurrent reports via a secured Web portal using a comma separated vales (CSV) of the already required data or a PDF file. CSV is a
The T100—Traffic and Capacity Statistics for Segment data reports must be created as an electronic “comma separated values” file, using ASCII text character encoding, for uploading via the “eSubmit” application.
The comma separated values file MUST BE indicated when naming the file, by using the letters [CSV] or [csv] following the file name, as the file name extension.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XX201003-T100SEG.csv
S,0A050,2010,03,BWI,LAS,F,698,1,25,12500000,1250,922,25338,989,23,789,685
A certification statement is required identifying an appropriate official of the reporting carrier. The certification statement will read:
Carrier Name:
Address:
Homeland:
(Homeland is the name of the country under the laws of which air carrier organized.)
Carrier Code:
Report Date (Year/Month):
I, the undersigned, do certify that this report has been prepared under my direction in accordance with the regulations in 14CFR Part 217. I affirm that, to the best of my knowledge and belief, this is a true, correct and complete report.
Date:
Signature:
Name (Please Print or Type):
Title:
Telephone Number:
Name of Person Who Prepared Report:
Telephone Number:
E-mail Address:
Once signed, the T100(f) Certification must be published as an electronic “portable document format” file format, for uploading to the eSubmit application.
The portable document format file MUST BE indicated when naming the file, by using the letters [PDF] or [pdf] following the file name, as the file name extension. You must have Adobe Reader software downloaded on your computer in order to “save as/print” your document as a “pdf” file.
While the file name is flexible and may be determined by the individual air carrier, the portable document format (pdf) file format is required, as outlined in the rule entitled,
Suggested file name: XXX201003-217T100fCert.pdf
The T100(f) Foreign Air Carrier Traffic Data reports must be created as an electronic “comma separated values” file, using ASCII text character encoding, for uploading via the “eSubmit” application.
The comma separated values file MUST BE indicated when naming the file, by using the letters [CSV] or [csv] following the file name, as the file name extension.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format is required, as outlined in the rule entitled,
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XXX201003-T100F.csv
BA,200612,IAH,DTW,F,6261,30,1647,17137,5670,772500,0,0
BA,200612,IAH,LGW,F,6271,49,6707,521842,10976,1903195,6707,521842
BA,200612,IAH,LHR,F,0,0,0,0,0,0,1643,12935
The T100—Alaskan Air Carrier Weekly Segment Report reports must be created as an electronic “comma separated values” file, using ASCII text character encoding, for uploading via the “eSubmit” application.
The comma separated values file MUST BE indicated when naming the file, by using the letters [CSV] or [csv] following the file name, as the file name extension.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format is required, as outlined in the rule entitled,
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XX20100528-T100AKSEG.csv
S,06000,2010,05,27,FAI,GAL,F,405,3,1,3793,16,3,239,1106,1,72,60,121
The T100—Alaskan Air Carrier Weekly Market Report reports must be created as an electronic “comma separated values” file, using ASCII text character encoding, for uploading via the “eSubmit” application.
The comma separated values file MUST BE indicated when naming the file, by using the letters [CSV] or [csv] following the file name, as the file name extension.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format is required, as outlined in the rule entitled,
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XX201003-T100AKMKT.csv
M,06000,2010,05,27,FAI,GAL,F,3,239,1000
A certification statement for the Origin and Destination Survey Report is required identifying an appropriate official of the reporting carrier. This statement certifies that:
Total Number of records:
Total Number of passengers:
Date:
Signature:
Name (Please Print or Type):
Once signed, the Origin-Destination Survey Transmittal Letter must be published as an electronic “portable document format” file format, for uploading to the eSubmit application.
The portable document format file MUST BE indicated when naming the file, by using the letters [PDF] or [pdf] following the file name, as the file name extension. You must have Adobe Reader software downloaded on your computer in order to “save as/print” your document as a ‘pdf’ file.
While the file name is flexible and may be determined by the individual air carrier, the portable document format (pdf) file format is required, as outlined in the rule entitled,
RECORD DESCRIPTION/INSTRUCTIONS: Origin-Destination Survey Transmittal Letter—Foreign Carriers
A certification statement for the Origin and Destination Survey Report is required identifying an appropriate official of the reporting carrier. This statement certifies that:
Total Number of records:
Total Number of passengers:
Date:
Signature:
Name (Please Print or Type):
Once signed, the Origin-Destination Survey Transmittal Letter must be published as an electronic “portable document format” file format, for uploading to the eSubmit application.
The portable document format file MUST BE indicated when naming the file, by using the letters [PDF] or [pdf] following the file name, as the file name extension. You must have Adobe Reader software downloaded on your computer in order to “save as/print” your document as a ‘pdf’ file.
While the file name is flexible and may be determined by the individual air carrier, the portable document format (pdf) file format is required, as outlined in the rule entitled,
File name: XX201003-FONDtransmittal.pdf
The
The comma separated values file MUST BE indicated when naming the file with file extension [CSV] or [csv] following the file name.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format is required, as outlined in the rule entitled,
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XX201003-OND.csv
XX,94,4913,1,BOS,IO,XX,G,LAX,VA,VA,G,SYD,—,—,,CNS,DJ,VA,G,BNE,VA,VA,G,LAX,IO,IO,G,BOS
The second itinerary in the sample record format above indicates a surface segment between SYD and CNS. The —,—,, indicate the positions the two carriers and fare code would have occupied had there been air transportation between the two airports.
The Origin-Destination Survey reports must be created as an electronic “comma separated values” file, using ASCII text character encoding, for uploading via the “eSubmit” application.
The comma separated values file MUST BE indicated when naming the file with file extension [CSV] or [csv] following the file name.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format is required, as outlined in the rule entitled,
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XX201003-FOND.csv
XX,94,1234,1,BOS,IO,XX,G,LAX,VA,VA,G,SYD,—,—,,CNS,DJ,VA,G,BNE,VA,VA,G,LAX,IO,IO,G,BOS
The second itinerary in the sample record format above indicates a surface segment between SYD and CNS. The —,—,, indicate the positions where the ticketing carrier, the operating carrier, and the fare basis code information would have been entered had there been air transportation between the two airports.
The
The comma separated values file MUST BE indicated when naming the file, by using the letters [CSV] or [csv] following the file name, as the file name extension.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format is required, as outlined in the rule entitled,
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XX201003-234ontime.csv
XX,1234,DFW,BNA,20100301,1,0735,0735,0737,0915,0915,1148,0,0,100,251,2,153,151,0753,1141,N123XX,,,,,,,,,,1,MEM,1005,69,69,1114,N234XX,,,,,,,,,,,,,,,,,,,,,,,,,
The transmittal letter must identify the carrier and month and year for which the
A certification statement identifying an appropriate official of the reporting carrier. The certification statement will read:
I, (Name) and (Title), of the above-named air carrier, certify that the BTS Form 234 “On-Time Flight Performance Report” is to the best of my knowledge and belief, true, correct, and a complete report for the period stated.
Date:
Signature:
Name (Please Print or Type):
The name(s) and telephone number(s) of the carrier's staff who can be contacted to resolve problems regarding both carrier data and technical matters.
For control purposes, a statement indicating the total number of flight operations and unique flight numbers in the Form 234 submission.
For the initial submission, a description of the data submitted, specifying whether the eSubmit file includes data for only reportable airports or for all domestic scheduled nonstop flight operations.
For the initial submission and for subsequent changes, a statement identifying the source of the scheduled arrival and departure times used in the report: (1) Official Airline Guide in effect on (date) and (2) the name of the computer reservation system used for reporting purposes, pursuant to § 234.4(f).
Once signed, the
The portable document format file MUST BE indicated when naming the file, by using the letters [PDF] or [pdf] following the file name, as the file name extension. You must have Adobe Reader software downloaded on your computer in order to “save as/print” your document as a `pdf' file.
While the file name is flexible and may be determined by the individual air carrier, the portable document format (pdf) file format is required, as outlined in the rule entitled,
Suggested file name: XX201003-234transmittal.pdf
The ASQP—Mishandled Baggage reports must be created as an electronic “comma separated values” file, using ASCII text character encoding, for uploading via the “eSubmit” application.
The comma separated values file MUST BE indicated when naming the file, by using the letters [CSV] or [csv] following the file name, as the file name extension.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format is required, as outlined in the rule entitled,
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XX201003-234mbr.csv
XX,2010,03,8004000,35000
A certification statement for the Mishandled Baggage Report is required identifying an appropriate official of the reporting carrier. The certification statement will read:
I, (Name) and (Title), of the above named carrier, certify that the Mishandled Baggage Report file is to the best of my knowledge and belief, true, correct and a complete report for the period stated.
Date:
Signature:
Name (Please Print or Type):
Once signed, the Mishandled Baggage Report Certification must be published as an electronic “portable document format” file format, for uploading to the eSubmit application.
The portable document format file MUST BE indicated when naming the file, by using the letters [PDF] or [pdf] following the file name, as the file name extension. You must have Adobe Reader software downloaded on your computer in order to “save as/print” your document as a `pdf' file.
While the file name is flexible and may be determined by the individual air carrier, the portable document format (pdf) file format is required, as outlined in the rule entitled,
Suggested file name: XX201003-234mbrCert.pdf
The 251—Report of Passengers Denied Confirmed Space Report reports must be created as an electronic “comma separated values” file, using ASCII text character encoding, for uploading via the “eSubmit” application.
The comma separated values file MUST BE indicated when naming the file, by using the letters [CSV] or [csv] following the file name, as the file name extension.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format is required, as outlined in the rule entitled,
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XX201003-Form251.csv
Atlantic Southeast Airlines, EV,3Q2010,1177,1358,0,0,746,3281,2535,28566,0,0,25450773,407092,480726,0
The P-1a Interim Operations reports must be created as an electronic “comma separated values” file, using ASCII text character encoding, for uploading via the “eSubmit” application.
The comma separated values file MUST BE indicated when naming the file, by using the letters [CSV] or [csv] following the file name, as the file name extension.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format is required, as outlined in the rule entitled,
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XX201003-F41-P-1a.csv
P01A,YV,S,0000,39010,1,2010,06,-68401383
The P-12a—Fuel Cost and Consumption reports must be created as an electronic “comma separated values” file, using ASCII text character encoding, for uploading via the “eSubmit” application.
The comma separated values file MUST BE indicated when naming the file, by using the letters [CSV] or [csv] following the file name, as the file name extension.
The file name is flexible and may be determined by the individual air carrier, but the comma separated values (csv) file format is required, as outlined in the rule entitled,
The fields in the sample record shown below follow the same order as the above record description, separated by commas, and saved with the file name extension of .csv.
Suggested file name: XX201003-F41-P-12A.csv
P12A,3Z,S,0000,0008
P12A,3Z,S,0000,0008
P12A,3Z,S,0000,0008
A = Gallons
B = Cost
C = Gallons not Paid for
Employee Benefits Security Administration, Labor.
Interim final rule with request for comments.
This document contains an interim final regulation under the Employee Retirement Income Security Act of 1974 (ERISA or the Act) requiring that certain service providers to employee pension benefit plans disclose information to assist plan fiduciaries in assessing the reasonableness of contracts or arrangements, including the reasonableness of the service providers' compensation and potential conflicts of interest that may affect the service providers' performance. These disclosure requirements are established as part of a statutory exemption from ERISA's prohibited transaction provisions. This regulation will affect employee pension benefit plan sponsors and fiduciaries and certain service providers to such plans. Interested persons are invited to submit comments on the interim final regulation for consideration by the Department of Labor.
To facilitate the receipt and processing of comments, EBSA encourages interested persons to submit their comments electronically to
For further information on the interim final regulation, contact Allison Wielobob or Fil Williams, Office of Regulations and Interpretations, Employee Benefits Security Administration, (202) 693-8510. This is not a toll-free number.
In recent years, there have been a number of changes in the way services are provided to employee benefit plans and in the way service providers are compensated. Many of these changes may have improved efficiency and reduced the costs of administrative services and benefits for plans and their participants. However, the complexity resulting from these changes also has made it more difficult for plan sponsors and fiduciaries to understand what service providers actually are paid for the specific services rendered.
Despite these complexities, section 404(a)(1) of ERISA requires plan fiduciaries, when selecting or monitoring service providers and plan investments, to act prudently and solely in the interest of the plan's participants and beneficiaries and for the exclusive purpose of providing benefits and defraying reasonable expenses of administering the plan. Fundamental to a plan fiduciary's ability to discharge these obligations is the availability of information sufficient to enable the plan fiduciary to make informed decisions about the services, the costs, and the service provider. Although the Department of Labor (Department) has issued technical guidance and compliance assistance materials relating to the obligations of plan fiduciaries in selecting and monitoring service providers,
The Department's proposal required that reasonable contracts and arrangements between employee benefit plans and certain providers of services to such plans include specified information to assist plan fiduciaries in assessing the reasonableness of the compensation paid for services and the conflicts of interest that may affect a service provider's performance of services. The proposal also was designed to assist plan fiduciaries and administrators in obtaining the information they need from service providers to satisfy their reporting and disclosure obligations.
Due to the large number of public comments received, the importance of this regulatory initiative, and its potentially significant effects on the provision of services to employee benefit plans, the Department held a public hearing on March 31 and April 1, 2008, in order to further develop the public record and the Department's understanding of the issues raised in the
Set forth below is an overview of the interim final regulation and the public comments received on the proposal and during the Department's public hearing.
The Department's interim final regulation (for simplicity, the interim final regulation also is referred to herein as the final regulation) retains the basic structure of the proposal by requiring that covered service providers satisfy certain disclosure requirements in order to qualify for the statutory exemption for services under ERISA section 408(b)(2). The furnishing of goods, services, or facilities between a plan and a party in interest to the plan generally is prohibited under section 406(a)(1)(C) of ERISA. As a result, a service relationship between a plan and a service provider would constitute a prohibited transaction, because any person providing services to the plan is defined by ERISA to be a “party in interest” to the plan. However, section 408(b)(2) of ERISA exempts certain arrangements between plans and service providers that otherwise would be prohibited transactions under section 406 of ERISA. Specifically, section 408(b)(2) provides relief from ERISA's prohibited transaction rules for service contracts or arrangements between a plan and a party in interest if the contract or arrangement is reasonable, the services are necessary for the establishment or operation of the plan, and no more than reasonable compensation is paid for the services. Regulations issued by the Department clarify each of these conditions to the exemption.
This rule amends the regulation under ERISA section 408(b)(2) to clarify the meaning of a “reasonable” contract or arrangement for covered plans. Currently, the regulation at 29 CFR 2550.408b-2(c) states only that a contract or arrangement is not reasonable unless it permits the plan to terminate without penalty on reasonably short notice. The final regulation establishes a requirement under section 408(b)(2) that, in order for certain contracts or arrangements for services to be reasonable, the covered service provider must disclose specified information to a responsible plan fiduciary, defined as a fiduciary with authority to cause the plan to enter into, or extend or renew, a contract or arrangement for the provision of services to the plan. The specific disclosure requirements are described in more detail below.
The final regulation differs from the proposal in a number of significant respects, each discussed in this rule. First, unlike the proposal, the final rule does not require a formal written contract or arrangement delineating the disclosure obligations, even though the disclosures must be made in writing. The final rule focuses instead on the substance of the disclosure that must be provided. Second, the final rule treats separately pension and welfare plans. Paragraph (c)(1) of the rule published today provides disclosure requirements applicable to contracts or arrangements with pension plans. The Department reserves paragraph (c)(2) of the rule for future guidance on disclosure with respect to welfare plans.
Third, the final rule modifies the categories of service providers that must comply with the disclosure requirements, including fiduciaries, investment advisers, and recordkeepers or brokers who make investment alternatives available to a plan. It also applies to providers of other specified services who receive either “indirect compensation” (generally from sources other than the plan or plan sponsor) or certain types of payments from affiliates and subcontractors. The final rule includes in its definition of “covered service providers” fiduciaries to investment vehicles that hold plan assets and in which a covered plan has a direct equity investment. However, the definition makes clear that furnishing non-fiduciary services to such vehicles, or services to vehicles that do not hold plan assets will not cause a person to be a covered service provider. In addition, the regulation requires fiduciaries to plan asset investment vehicles in which plans make direct equity investments, as well as parties that offer designated investment alternatives to a participant-directed individual account plan as part of a platform, to furnish investment-related compensation information.
Fourth, the final rule, unlike the proposal, does not contain specific narrative conflict of interest disclosure provisions, but rather relies on full disclosure of the circumstances under which the covered service provider will be receiving compensation from parties other than the plan (or plan sponsor), the identification of such parties, and the compensation that is expected to be received. As discussed below, the Department is persuaded that plan fiduciaries will be in a better position to assess potential conflicts of interest by reviewing these specific parties and the actual or expected compensation to be received from such parties. Fifth, the final rule includes a new provision requiring that certain providers of multiple services disclose separately the cost to the covered plan of recordkeeping services. Sixth, the final rule specifically addresses the application of the requirements of the regulation to section 4975 of the Internal Revenue Code (the Code). And, lastly, the exemptive relief for plan sponsors or other responsible plan fiduciaries, originally proposed as a separate exemption, is now incorporated into the final rule for ease of reference and consideration by interested parties. A more detailed discussion of the final rule, including these changes, is set forth below.
As required by Executive Order 12866, the Department evaluated the benefits and costs of this final rule. The Department believes that mandatory proactive disclosure will reduce sponsor information costs, discourage harmful conflicts, and enhance service value. Additional benefits will flow from the Department's enhanced ability to redress abuse. Although the benefits are difficult to quantify, the Department is confident they more than justify the cost. The Department estimated costs for the rule over a ten-year time frame for purposes of this analysis and used information from the quantitative characterization of the service provider market presented below as a basis for these cost estimates. This characterization did not account for all service providers, but it does provide information on the segments of the service provider industry that are likely to be most affected by the rule (
In accordance with OMB Circular A-4,
A more detailed discussion of the need for this regulatory action, consideration of regulatory alternatives, and assessment of benefits and costs are included in Section K—“Regulatory Impact Analysis” below.
The final regulation, like the proposal, amends paragraph (c) of § 2550.408b-2 by moving, without change, the current provisions of paragraph (c) to a newly designated paragraph (c)(3) and adding new paragraphs (c)(1) and (2) to address the disclosure requirements applicable to a “reasonable contract or arrangement.” Paragraph (c)(1) describes the disclosure requirements for pension plans. Paragraph (c)(2) has been reserved for future guidance concerning the disclosure requirements for welfare plans.
The general paragraph of the final rule, paragraph (c)(1)(i), provides that no contract or arrangement for services between a covered plan and a covered service provider, nor any extension or renewal, is reasonable within the meaning of ERISA section 408(b)(2) and this regulation unless the requirements of the regulation are satisfied. The terms “covered plan” and “covered service provider” are defined in paragraph (c)(1)(ii) and (iii), respectively. The general paragraph also provides that the regulation's disclosure requirements are independent of a fiduciary's obligations under section 404 of ERISA.
Paragraph (c)(1)(ii) defines a “covered plan” to mean an employee pension benefit plan or a pension plan within the meaning of ERISA section 3(2)(A) (and not described in ERISA section 4(b)), except that such term shall not include a “simplified employee pension” described in section 408(k) of the Code, a “simple retirement account” described in section 408(p) of the Code, an individual retirement account described in section 408(a) of the Code, or an individual retirement annuity described in section 408(b) of the Code.
Under the proposal, all employee benefit plans subject to Title I of ERISA, including employee pension benefit plans and welfare benefit plans, were subject to the regulation's disclosure requirements. The Department received many comments and heard testimony from parties concerned about the implications of subjecting defined benefit plans, welfare benefit plans, and individual retirement accounts (IRAs) to the regulation.
Commenters questioned the proposal's application to defined benefit plans for a variety of reasons, suggesting that the Department consider separate guidance for defined benefit plans. Commenters argued that sponsors of defined benefit plans and their service providers have only recently joined the public policy discussion regarding fee disclosure for retirement plans. They believe that a thorough examination of the issues that affect defined benefit plans is warranted before disclosure rules apply with respect to their service providers.
In advocating for separate rules for defined benefit plans, some commenters focused on the differences in the legal structures of defined benefit plans and defined contribution plans. In addition, commenters noted that services are provided to defined benefit plans in ways that are materially different than they are for defined contribution plans. Other commenters noted that employers have incentives to monitor and negotiate service provider fees and expenses for defined benefit plans, because these plans primarily rely on employer contributions; excessive fees and expenses would make it more expensive for the employer to fund promised benefits. In contrast, defined contribution plans are funded primarily by employee contributions, and employers may pass on up to 100 percent of plan costs to employees.
After careful review of the comments, the Department is not persuaded that the information fiduciaries of defined benefit plans need to make informed decisions about their service providers is fundamentally different from the information fiduciaries of defined contribution plans need to make informed decisions. Nor is the Department persuaded that the service provider relationships between the two types of plans are so different as to justify exclusion of defined benefit plans from the regulation's disclosure requirements. Moreover, the Department does not believe that compliance with the disclosure requirements, particularly as modified from the proposal, will present any unreasonable compliance burdens for service providers to defined benefit plans. For these reasons, the final rule, like the proposal, applies to contracts and arrangements with covered service providers to both defined contribution and defined benefit plans.
The Department also received many comments concerning the applicability of the proposal to welfare benefit plans. Many commenters recommended their exclusion from the scope of the final
Commenters articulated specific concerns relating to welfare benefit plans, including the potential for negative effects on the insurance industry, which, they argue, is highly regulated by State laws. Many commenters asserted that, considering the high level of State regulation, subjecting welfare benefit plans to the disclosure regulation would be unnecessary and redundant because the disclosures contemplated in the regulation are already made available to plan fiduciaries through State regulatory processes. Other commenters pointed out that most State insurance laws do not require the types of disclosures addressed under the proposed rule and even where such State laws exist, they are loosely enforced. Still others asserted that there are “transparency problems” in general in the health and welfare industry.
Some commenters expressed views relating to prohibited transaction exemption (PTE) 84-24,
Still other commenters addressed specific concerns of pharmacy benefit managers (PBMs), which are intermediaries between drug manufacturers and health insurance plans. They believe that the reasons for disclosure discussed in the preamble to the proposed rule are inapplicable to PBMs. According to some commenters, the Federal Trade Commission has thoroughly evaluated the industry, finding that market forces provide sufficient information to plan fiduciaries and that excessive mandatory disclosure could weaken competition, such that the proposed regulation would negatively affect the delivery of prescription drugs to plan beneficiaries. Other commenters disputed the idea that PBMs should not be subject to the regulation, arguing that the discounts and rebates they received from drug companies were examples of undisclosed indirect compensation. Commenters offering this point of view did not present any further official comment or testimony at the public hearing.
In spite of these arguments, the Department believes that fiduciaries and service providers to welfare benefit plans would benefit from regulatory guidance in this area for the same reasons that apply to defined contribution plans and defined benefit plans. However, the Department is persuaded, based on the public comment and hearing testimony, that there are significant differences between service and compensation arrangements of welfare plans and those involving pension plans and that the Department should develop separate, and more specifically tailored, disclosure requirements under ERISA section 408(b)(2) for welfare benefit plans. Accordingly, the interim final rule published today includes a new paragraph (c)(2), which has been reserved for a comprehensive disclosure framework applicable to “reasonable” contracts or arrangements for services to welfare plans to be developed by the Department. The Department notes, however, that in the meantime, ERISA section 404(a) continues to obligate fiduciaries to obtain and consider information relating to the cost of plan services and potential conflicts of interest presented by such service arrangements.
Several commenters requested clarification regarding the regulation's application to IRAs or similar accounts. In some cases, commenters argued that the Department should exclude such accounts, as well as other plans that are not subject to Title I of ERISA, from the scope of the final regulation. The commenters observed that there are significant categories of arrangements that are subject to the prohibited transaction provisions of section 4975 of the Code, but not those of ERISA, and that do not have a fiduciary overseeing the plan. The comments asserted that owners of IRAs and other individual arrangements are more like individual plan participants than plan fiduciaries and that it would be inappropriate to impose the service provider-to-plan disclosure requirements in the context of non-ERISA arrangements. In contrast to participant-directed individual account plans, which typically offer a limited number of investment options, many IRAs offer a large number of investment options, such as brokerage accounts with essentially unlimited choices. Providing the disclosures set forth in the proposal could be quite burdensome and costly as a result. These costs, commenters argue, may drive service providers to limit the number of investment choices available in IRAs. In addition, some commenters pointed out that, under securities laws, the IRA accountholder is treated as the actual owner of the securities held in his or her IRA and is entitled to all securities law disclosures in the same manner as if the accountholder owned those securities directly. In contrast, with ERISA-covered plans, disclosure obligations under the securities laws extend only to the plan itself, not to individual plan participants.
The Department does not believe that IRAs should be subject to the final rule, which is designed with fiduciaries of employee benefit plans in mind. An IRA account-holder is responsible only for his or her own plan's security and asset accumulation. They should not be held to the same fiduciary duties to scrutinize and monitor plan service providers and their total compensation as are plan sponsors and other fiduciaries of pension plans under Title I of ERISA, who are responsible for protecting the retirement security of greater numbers of plan participants. Moreover, IRAs generally are marketed alongside other personal investment vehicles. Imposing the regulation's disclosure regime on IRAs could increase the costs associated with IRAs relative to similar vehicles that are not covered by the regulation. Therefore, although the final rule cross references the parallel provisions of section 4975 of the Code, paragraph (c)(1)(ii) provides explicitly that IRAs and certain other accounts and plans are not covered plans for purposes of the rule.
The categories of service providers covered by the final rule, in paragraph (c)(1)(iii), vary slightly from those described in the proposal. The proposed regulation generally included service providers falling into one of the following categories: (1) Fiduciary service providers, whether under ERISA or under the Investment Advisers Act of 1940; (2) service providers that will perform banking, consulting, custodial, insurance, investment advisory, investment management, recordkeeping,
The Department received a number of comments requesting clarification as to which entities were intended to be “service providers” for purposes of the proposal, both in terms of which service providers are responsible for complying with the proposal's written contract requirement, and who is considered a service provider such that their compensation and conflict of interest information must be disclosed to the responsible plan fiduciary. Some commenters argued that the proposal's disclosure requirements should be limited to service providers that deal directly with employee benefit plans, or that customarily are in contractual privity with the plan, and questioned the application of the rule to indirect service providers. These commenters were concerned that the proposed rule appears to apply, potentially without limit, to “indirect” service providers, for example a service provider to a direct service provider, or a service provider to an investment provider or mutual fund company; in some cases, they argue, the services provided by these indirect providers bear little or no relation to the particular plan service arrangement in question. For example, commenters questioned whether the proposed disclosure requirements would apply to a copy service, if a plan recordkeeper subcontracts with that copy service to perform administrative functions for both the recordkeeper and its plan clients, or to legal counsel to a registered investment company, when counsel's role is limited to ensuring that the company complies generally with applicable securities laws.
In connection with their request that the Department clarify whether providers of services to a plan service provider, or to an investment provider, are themselves service providers to the plan for purposes of the disclosure requirements of the proposed rule, some commenters note that confusion on this issue may stem from language of the proposed rule that adopted the view taken by the Department as to who is a “service provider” for purposes of reporting service provider compensation on the recent Form 5500, Schedule C, revisions. The new Schedule C reporting requirements are not limited to information concerning the compensation of persons with direct service provider relationships to a plan but also include compensation information regarding persons who provide services to investment vehicles in which plans invest. Commenters questioned whether a similar position is appropriate in the context of a prohibited transaction for which relief is obtained under section 408(b)(2).
Other commenters raised concerns about the proposal insofar as it was interpreted as raising technical issues under the Department's plan asset guidance.
The Department believes that the definition of covered service provider contained in the final rule addresses the ambiguities raised by the commenters and reflects the Department's intent to focus on contracts or arrangements between covered plans and fiduciaries, platform providers and other specified service providers dealing directly with covered plans who may receive indirect compensation or certain compensation from related parties. The Department notes that the parties that must be reported as service providers for Schedule C purposes will not necessarily be the same as the parties that will be covered service providers for purposes of this rule.
The Department continues to believe that requiring every service provider to a plan to satisfy the disclosure requirements of this regulation may not be appropriate or yield helpful information to plan fiduciaries. The Department also believes that certain service providers, because of the nature of the services that they provide to pension plans, the potential influence they have on plan fiduciaries' decisions and on the plan services that they ultimately will provide, or the complexity of their compensation arrangements, must provide comprehensive information to plan fiduciaries about the compensation that they will be paid for their services. The Department is sensitive to the technical and practical issues raised by commenters about how the scope of this rule will be applied to various parties in the employee benefit plan industry. The Department also agrees with commenters that service providers and plan fiduciaries would benefit from more certainty as to whether any particular service contract or arrangement will be required to comply with this rule. The Department believes that the interim final rule, in terms of defining the service providers covered by the rule, responds to the concerns of these commenters. However, the Department welcomes comments from interested persons who continue to have concerns about the scope of service providers covered by the interim final rule.
Paragraph (c)(1)(iii) of the final rule defines the term “covered service provider.” Among other changes, the final rule establishes a $1,000 threshold for service providers otherwise coming within the definition of a covered service provider (regardless of whether the threshold is met by compensation received by the covered service provider, an affiliate, or a subcontractor that is performing one or more of the services to be provided under the contract or arrangement with the covered plan). A “covered service provider” is a service provider that enters into a contract or arrangement with the covered plan and reasonably expects to receive $1,000 or more in compensation, direct or indirect, to be received in connection with providing one or more specified services. The Department included the $1,000 threshold in response to commenters' request that the final rule exclude contracts or arrangements that involve de minimis amounts of compensation. In these circumstances, the Department is persuaded that the parties to these relatively small service contracts or arrangements may not need to provide the detailed disclosures required under this rule in order to ensure that plan fiduciaries have the information they need to make informed decisions about the services and cost of the services to be provided. Commenters did not suggest a particular minimum amount for such contracts or arrangements, but the Department believes that $1,000 is a reasonable threshold amount to address their concerns. As this is an interim final rule, the Department welcomes
The types of service providers covered by the final regulation fall into three categories, and each category is discussed below. A service provider may be a covered service provider under the final rule even if some or all of the services provided pursuant to the contract or arrangement are performed by affiliates of the covered service provider or subcontractors. Further, as noted in paragraph (c)(1)(iii)(D)(
The first category of covered service providers, in paragraph (c)(1)(iii)(A), includes those providing services as an ERISA fiduciary or as an investment adviser registered under either the Investment Advisers Act of 1940 (Advisers Act) or any State law. This category is split into three subsections. Subparagraph (
Subparagraph (
This subcategory includes fiduciaries to the initial-level investment vehicle in which the covered plan makes a direct equity investment and which holds plan assets. However, it does not include fiduciaries to that initial vehicle's underlying investments, even though such down-level investment vehicles also may hold “plan assets.” The determination of whether an investment contract, product, or entity holds “plan assets” is made under sections 3(42) and 401 of ERISA and the regulation at 29 CFR 2510.3-101. The regulation uses the term “direct equity investment” to distinguish the covered plan's initial-level investment in an investment contract, product, or entity from investments made by such initial-level contract, product or entity in which the plan invests, without regard to whether the underlying, second-tier investment vehicles hold plans assets. Specifically, the regulation provides that a direct equity investment does not include investments made by the investment contract, product, or entity in which the covered plan invests.
Subparagraph (
The Department received a number of comments concerning the requirement to identify services as “fiduciary” services under ERISA or the Advisers Act. In general, commenters argued that whether such services will be provided may be unclear, given the facts-and-circumstances nature of fiduciary status under section 3(21) of ERISA, creating an unnecessary level of uncertainty for both plan fiduciaries and service providers in terms of compliance with the regulation. Commenters also argued that by including fiduciaries under the Advisers Act, the proposal included advisers that may not be registered under the Advisers Act, thereby adding a degree of uncertainty as to which service providers might be covered by the rule. Other commenters argued that plan sponsors may be confused as to whether a particular service provider is acting as a fiduciary under ERISA or as a fiduciary under the Advisers Act. The Department believes that the modifications reflected in paragraph (c)(1)(iii)(A) of the final rule respond to these concerns. The Department continues to believe, however, that it is important for plan fiduciaries to know whether a party will be providing or reasonably expects to provide services to the plan as an ERISA fiduciary or as a registered investment adviser.
The second category of covered service providers, in paragraph (c)(1)(iii)(B), includes providers of recordkeeping services or brokerage services to a covered plan that is an individual account plan (under ERISA section 3(34)) and that permits participants and beneficiaries to direct the investment of their accounts, if one or more designated investment alternatives will be made available (
The third category of covered service providers, in paragraph (c)(1)(iii)(C), includes those providing specified services to the covered plan when the covered service provider (or an affiliate or a subcontractor) reasonably expects to receive “indirect” compensation or certain payments from related parties. As discussed below, the terms “affiliate”, “indirect compensation,” and “subcontractor” are defined in paragraph (c)(1)(viii) of the final regulation. The services included in this category are accounting, auditing, actuarial, appraisal, banking, consulting (
The services in the final rule's third category generally are the same as those in the proposal. However, whether or not these services will cause a service provider to be a covered service
Nonetheless, the Department, in response to commenters, has attempted to narrow the scope of the term “consulting” by adding a parenthetical clarifying that “consulting” as used in the final regulation is consulting related to the development or implementation of investment policies or objectives, or the selection or monitoring of service providers or plan investments. Also, it should be noted that investment advisory services are included in both the first and third categories of covered service providers, but the investment advisers who are covered in each category may be different. The first category includes only
Paragraph (c)(1)(iii)(D) of the final regulation clarifies that, notwithstanding the preceding categories of “covered service providers,” no person or entity is a “covered service provider” solely by providing services (1) as an affiliate or a subcontractor that is performing one or more of the services to be provided under the contract or arrangement with the covered plan (see paragraph (c)(1)(iii)(D)(
Paragraph (c)(1)(iii)(D)(
The Department believes that these clarifications resolve much of the uncertainty raised by commenters about the intended application of the proposal in the context of plan investments. Other than a fiduciary described in paragraph (c)(1)(iii)(A)(
The Department notes that some contracts or arrangements will fall outside the scope of the final regulation because they do not involve a “covered plan” and a “covered service provider.” ERISA nonetheless requires such contracts or arrangements to be “reasonable” in order to satisfy the ERISA section 408(b)(2) statutory exemption. ERISA section 404(a) also obligates plan fiduciaries to obtain and carefully consider information necessary to assess the services to be provided to the plan, the reasonableness of the fees and expenses being paid for such services, and potential conflicts of interest that might affect the quality of the provided services.
The proposed regulation would have required that the terms of the contract or arrangement for services between the covered plan and the covered service provider be in writing and that the writing delineate the specific disclosure obligations of the covered service provider under the regulation. The Department received a number of comments on the requirement that contracts and arrangements, as well as the disclosure obligations thereunder, must be in writing. Many commenters argued that such written documents are not used with respect to the provision of many services and that requiring formal written contracts adds complexity and costs, as well as potentially raising concerns under State contract law, without affecting the quality of such services. For example, these points were made by providers of insurance products and services, who explained that any amendments to their contracts, which are approved and regulated by State insurance agencies, would have to be submitted to such agencies; this would be a lengthy and burdensome process with an outcome that is not within the service providers' control.
While the interim final rule continues to require that the responsible plan fiduciary be furnished the required disclosures in writing, the rule does not require that a formal contract or arrangement itself be in writing or that any representations concerning the
As discussed above, neither the proposal nor the interim final rule requires the covered service provider to make disclosures in any particular manner or format. Further, the preamble to the proposal specifically noted that the covered service provider could disclose using different documents from separate sources as long as the documents, collectively, contained all of the required information. Commenters on the proposal disagreed as to whether or not this would lead to an effective presentation to responsible plan fiduciaries, especially those for small plans. Commenters also disagreed as to the anticipated costs and burdens associated with more stringent format requirements and the extent to which those costs would be absorbed by service providers or passed through to plans, and therefore potentially to participants and beneficiaries. Some commenters encouraged the Department to retain its flexible approach, arguing that it is best left to the parties to service contracts or arrangements to determine the optimal way to fulfill the substantive disclosure requirements. Other commenters encouraged the Department to adopt a model form for disclosure or to otherwise mandate that the required information be conveyed in a summary or consolidated fashion, arguing that this would lead to more consistency in the way that information is disclosed and make it easier for responsible plan fiduciaries to review and analyze information received from plan service providers.
At this time, the Department has not determined whether it is feasible, as part of this regulation, to provide specific and meaningful standards for the format in which the required information must be disclosed, given the large variety of plan service arrangements that are covered by the interim final regulation and the variation in the way service providers currently disclose information to plan fiduciaries. The Department is persuaded that plan fiduciaries may benefit from increased uniformity in the way that information is presented to them. However, the Department does not want to unnecessarily increase the cost and burden for service providers to furnish required information, especially to the extent such cost may be passed along to plan participants and beneficiaries, unless it is clear that the benefit to plan fiduciaries outweighs such cost and burden. If the Department is convinced that the benefits would outweigh the costs, the final regulation may be revised. Specifically, the Department is considering adding a requirement that covered service providers furnish a “summary” disclosure statement, for example limited to one or two pages, that would include key information intended to provide an overview for the responsible plan fiduciary of the information required to be disclosed. The summary also would be required to include a roadmap for the plan fiduciary describing where to find the more detailed elements of the disclosures required by the regulation.
To assist the Department in its decision whether to include such a requirement in the final rule, interested persons are encouraged to submit comments on three issues: first, the likely cost and burden to covered service providers, and to any other parties, of complying with such a requirement; second, the anticipated benefits to responsible plan fiduciaries, whether due to time savings, cost savings, or other factors, of including a summary disclosure statement; and third, how to most effectively construct the requirement for a summary disclosure statement to ensure both its feasibility and its usefulness in helping the Department achieve its objectives.
As to the substance of the information required to be disclosed, the proposal generally required the disclosure of information intended to assist plan fiduciaries in understanding the services that will be furnished and in assessing the reasonableness of the compensation, direct and indirect, that the service provider would receive in connection with the provision of such services. The proposal also required the disclosure of specific information intended to assist plan fiduciaries in assessing any real or potential conflicts of interest that may affect the quality of the services to be provided. As discussed above, the proposal did not require that the information be furnished in any particular format. While the proposal did require that the required disclosures be furnished in advance of entering into a contract or arrangement, along with a representation that all of the required disclosures had been furnished to the responsible fiduciary, the proposal did not designate any specific time period for making such advance disclosure.
The proposal broadly defined compensation or fees
With regard to the disclosure of compensation generally, the proposal contained a special rule for providers of multiple services (commonly referred to as “bundles” of services). In the case of bundled service arrangements, the proposal required only that the provider of the bundle make the prescribed disclosures. In such instances, the bundled service provider would be required to disclose information concerning all of the services to be provided in the bundle, regardless of who actually performs the service. Further, the bundled provider would be required to disclose the aggregate direct compensation that will be paid for the bundle, as well as all indirect compensation that will be received by the service provider, or its affiliates or subcontractors within the bundle, from third parties. The preamble explained that generally the bundled provider would be required to break down the aggregate compensation among the individual services comprising the bundle only when the compensation was separately charged against the plan's investment (such as management fees and 12b-1 fees) or was set on a
While the Department retained many of the disclosure concepts of the proposal, the interim final rule contains a number of changes made in response to issues raised by commenters. Paragraph (c)(1)(iv) of the final rule describes the initial disclosure requirements that must be satisfied, in writing, by the covered service provider; paragraph (c)(1)(v) describes the timing requirements applicable to the initial disclosures and when changes to the initial disclosures must be furnished; paragraph (c)(1)(vi) describes the requirement that a covered service provider disclose information requested by the responsible plan fiduciary or covered plan administrator to comply with ERISA's reporting and disclosure requirements; and paragraph (c)(1)(vii) addresses inadvertent errors and omissions in disclosing the required information.
Paragraph (c)(1)(iv)(A) requires a description of the services to be provided to the covered plan pursuant to the contract or arrangement, but not including non-fiduciary services described in paragraph (c)(1)(iii)(D)(
Some commenters requested guidance as to the level of detail necessary when describing the services. For example, commenters asked whether general descriptions of the services would be acceptable, or whether detailed and itemized descriptions must be provided. It is the view of the Department that the level of detail required to adequately describe the services to be provided pursuant to a contract or arrangement will vary depending on the needs of the responsible plan fiduciary.
In certain instances, it may be well understood that a particular service necessarily encompasses, among other things, a variety of sub-services such that a description of the sub-services is unnecessary. For example, plan fiduciaries may understand that the execution of securities transactions includes, but is not limited to, valuation, safekeeping, posting of income, clearing and settling transactions, and reporting transactions, thereby eliminating the need to describe such sub-services. In an effort to clarify the flexibility inherent in this disclosure requirement, the final rule omits the word “all” from the required description of services.
Ultimately, though, the responsible plan fiduciary must, under sections 404 and 408(b)(2) of ERISA, decide whether it has enough information about the services to be provided pursuant to the contract or arrangement to determine whether the cost of such services to the plan is reasonable. Accordingly, if a particular description of services provided by a covered service provider lacks sufficient detail to enable the responsible plan fiduciary to determine whether the compensation to be received for such services is reasonable, the responsible plan fiduciary must request additional information concerning those services.
There is one provision of the interim final rule that includes a more specific standard for the level of detail that must be furnished when describing the provision of recordkeeping services in specified circumstances. See section (c)(1)(iv)(D)(
Paragraph (c)(1)(iv)(B) of the regulation requires, if applicable, a statement that the covered service provider, an affiliate, or a subcontractor will provide, or reasonably expects to provide, services pursuant to the contract or arrangement directly to the covered plan (or to an investment vehicle that holds plan assets and in which the covered plan has a direct equity investment) as a fiduciary; and, if applicable, a statement that the covered service provider, an affiliate, or a subcontractor will provide, or reasonably expects to provide, services pursuant to the contract or arrangement directly to the covered plan as an investment adviser registered under either the Advisers Act or any State law. Thus, if a service provider will, or reasonably expects to, provide services as both a fiduciary and a registered investment adviser, the statement must reflect both of these roles. While the proposal contained a similar disclosure requirement, the requirement contained in the final rule reflects changes that are intended to address concerns raised by commenters.
Commenters on the proposal expressed concern that, given the factual nature of fiduciary status under ERISA, this requirement added a level of uncertainty to the statutory exemption. Commenters also expressed concern that disclosing fiduciary status by virtue of being an investment adviser involved similar uncertainties and, in addition, would only serve to confuse plan fiduciaries regarding the nature of the services that the plan would receive. As discussed above, the Department continues to believe that plan fiduciaries should understand whether a service provider will provide, or reasonably expects to provide, services as an ERISA fiduciary or services as a registered investment adviser in light of their heightened level of responsibility under ERISA and the Advisers Act, respectively. The Department, however, believes that the final disclosure provision addresses the concerns of the commenters. First, the final provision only requires disclosure if the provider will or
The Department received a number of comments on the compensation disclosure requirements of the proposal. Many of the commenters expressed concern about the parties for whom compensation might have to be reported under the proposal, such as providers of services to mutual funds and other investment products in which a plan might invest, and the increased level of complexity attendant to more detailed levels of disclosure generally. The Department believes that many of the issues raised by commenters in this area have been addressed in the final regulation by more specifically defining the parties that would be treated as “covered service providers” for purposes of the disclosure requirements.
The compensation disclosure requirements of the final rule are set forth at paragraph (c)(1)(iv)(C). While structured differently than the proposal, the final rule retains many of the same concepts of the proposal with respect to what types of compensation have to be disclosed for purposes of a reasonable contract or arrangement. The compensation disclosure requirement of
Paragraph (c)(1)(iv)(C)(
This requirement to disclose direct compensation generally follows the requirement of the proposal, with a clarifying change. A number of commenters on the proposal questioned whether the proposal's definition of compensation, which referred to payments received “directly from the plan or plan sponsor” was intended to subject to ERISA section 408(b)(2) payments for services made solely by the plan sponsor and not out of plan assets,. The proposal's reference to payments received from plan sponsors was intended to distinguish direct compensation from indirect compensation. As reflected above, the final regulation omits the reference to the plan sponsor, so as to avoid the confusion raised by commenters. The final rule also clarifies that a covered service provider generally may disclose the direct compensation received from the plan either as a total for all services (
Finally, in response to the concerns of some commenters about whether a failure to disclose unexpected compensation would result in a prohibited transaction by reason of losing relief under section 408(b)(2), the final rule requires disclosure only of compensation that the service provider, an affiliate, or a subcontractor “reasonably expects” to receive in connection with the services.
Paragraph (c)(1)(iv)(C)(
The proposal defined compensation or fees as “indirect” if received from any source other than the plan, the plan sponsor, or the covered service provider. The substance of the final rule with regard to disclosure of indirect compensation is similar to the proposed rule, but has been expanded to require disclosure of not only the indirect compensation that a covered service provider expects to receive, as proposed, but also identification of the services for which the indirect compensation will be received and identification of the payer of the indirect compensation.
Paragraph (c)(1)(iv)(C)(
The disclosure of indirect compensation and certain compensation paid among related parties serves two purposes. First, the disclosures are intended to enable plan fiduciaries to better assess the reasonableness of the compensation paid for services to the plan by taking into account all of the compensation being received in connection with such services. Second, the disclosures are intended to enable plan fiduciaries to assess actual or potential conflicts of interest that may impact the quality of services provided to the plan.
The proposed rule required the covered service provider to furnish to plan fiduciaries specific information relating to conflicts of interest (see § 2550.408b-2(c)(1)(iii)(C) through (F), at 72 FR 71005). These provisions would have required disclosure of, among other things, information concerning: whether the service provider expects to participate in any transactions entered into with the plan; material financial relationships with certain parties related to the provision of services to the plan; whether the service provider will be able to unilaterally affect its own compensation
A number of commenters expressed concern about the scope of the proposal's conflict of interest disclosures and the ultimate usefulness of the information to responsible plan fiduciaries in evaluating potential conflicts. Specifically, commenters asserted that the requirements, as proposed, were too broad, pointing out that having to disclose, in addition to actual conflicts, all potential conflicts, would create a potentially limitless, and therefore extraordinarily burdensome, requirement for service providers. Without a clear definition of what kinds of relationships may constitute a conflict and without knowing what other parties a covered plan may be engaging for other services, commenters argued such disclosure would be nearly impossible. Further, commenters pointed out that service providers likely would over-disclose in order to avoid a prohibited transaction, thus inundating plan fiduciaries with excessive, potentially confusing, and ultimately meaningless information. Commenters also requested additional guidance as to what would be a “material” relationship and argued that ambiguity surrounding this term would lead to inconsistent disclosures among various service providers.
Finally, the proposal required a covered service provider to disclose its ability to affect its own compensation. Commenters pointed out that ERISA's prohibited transaction rules preclude fiduciary service providers from engaging in such activity. They also noted that, to the extent that a service provider is not a fiduciary, exercising such discretion over its compensation likely would constitute a fiduciary act resulting in a separate prohibited transaction.
As an alternative to the disclosure regime of the proposed regulation, some commenters suggested that a better indicator of the existence and significance of a conflict of interest is information about the amounts and sources of compensation that service providers expect to receive in connection with the services provided to the plan. After careful consideration of the comments regarding the proposed requirement for narrative descriptions of conflicts of interest, the Department agrees that the final regulation's more detailed disclosure of compensation arrangements, particularly the additional information concerning the receipt of indirect compensation and compensation paid among related parties, will provide clearer and more meaningful information to the responsible plan fiduciaries about potential conflicts of interest than the narrative description of such conflicts required by the proposal. Accordingly, the final rule does not require the narrative disclosures about potential conflicts that were contained in the proposed regulation. Rather, the final rule requires that in conjunction with the description of the indirect compensation being received by the covered service provider (or an affiliate or subcontractor) in connection with the services provided to the plan, the covered service provider must disclose the services to which the indirect compensation relates and the payer of the compensation. Covered service providers similarly must identify the source and recipient of certain compensation paid among related parties, and the services to which such compensation relates. The Department believes that compliance with these disclosure requirements will ensure that fiduciaries have meaningful information with which to assess potential conflicts of interest on the part of their service providers.
Paragraph (c)(1)(iv)(C)(
The final rule also includes a requirement concerning specific disclosures for recordkeeping services, which was not included in the proposal. Paragraph (c)(1)(iv)(D) provides that, if recordkeeping services will be provided to the covered plan, the covered service provider must furnish a description of all direct and indirect compensation that the covered service provider, an affiliate, or a subcontractor reasonably expects to receive in connection with such recordkeeping services. In addition, if the covered service provider reasonably expects recordkeeping services to be provided, in whole or in part, without explicit compensation for such recordkeeping services, or when compensation for recordkeeping services is offset or rebated based on other compensation received by the covered service provider, an affiliate, or a subcontractor, the covered service provider must furnish a reasonable and good faith estimate of the cost to the covered plan of such recordkeeping services. The covered service provider must explain the methodology and assumptions used to prepare the estimate and describe in detail the recordkeeping services that will be provided to the covered plan. The estimate shall take into account, as applicable, the rates that the covered service provider, an affiliate, or a subcontractor would charge to, or be paid by, third parties, or the prevailing market rates charged, for similar recordkeeping services for a similar plan with a similar number of covered participants and beneficiaries.
The addition of this provision to the final rule reflects the Department's belief that information relating to recordkeeping services and the costs to covered plans of those services should be disclosed to responsible plan fiduciaries in a meaningful way. The availability of information sufficient to enable the plan fiduciary to make informed decisions about the costs of recordkeeping is fundamental to a responsible plan fiduciary's ability to satisfy its ERISA obligations. Especially in complicated service arrangements when a variety of services, including recordkeeping services, are provided to the covered plan and may be paid for through charges at the plan investment level or through revenue sharing, it is sometimes difficult for a plan fiduciary to determine the portion of aggregate charges that will be applied to recordkeeping services. The Department believes that requiring such information to be separately disclosed will better enable fiduciaries to make informed evaluations of a covered plan's recordkeeping costs. To the extent recordkeeping costs will not be covered by relatively straightforward direct or indirect compensation received by plan service providers, and to accommodate industry variation in how recordkeeping costs are otherwise absorbed by plan
Paragraph (c)(1)(iv)(E) of the final rule, consistent with the proposal, requires a description of the manner in which the compensation described in paragraphs (c)(1)(iv)(C) and (D) will be received, such as whether the covered plan will be billed or the compensation will be deducted directly from the covered plan's account(s) or investments.
The definition of compensation under the proposal was very broad and encompassed not only the compensation and fees received by service providers, but also compensation attendant to plan investments and investment options. Disclosures concerning investment-related compensation (
The Department received a number of comments concerning the disclosure of investment-related compensation. Most of the comments focused on what information should be disclosed and by whom it should be disclosed. The final regulation addresses the major issues raised by commenters through changes to the scope of the term “covered service provider.” For example, the concerns relating to uncertainty as to whether issuers of investment products, and certain service providers to those issuers or products, are themselves covered service providers for purposes of the regulation have been addressed by clarifying who does not constitute a “covered service provider” in the final rule. See above discussion relating to paragraph (c)(1)(iii)(D) of the final rule. Other comments expressed concern about some of the terminology used in the proposal. For example, one commenter expressed the view that the proposal left unclear whether a component of a charge called an “investment management fee” that actually pays recordkeeping or other non-management costs is required to be separately disclosed. The commenter explained that some service providers construe “revenue sharing” which would be required to be disclosed to include only the items specified in the preamble to the proposal, notwithstanding that there may be components of an expense ratio that actually pay for non-investment management services. Other commenters favorably characterized the proposal's definition of fees and expenses as comprehensive. Again, many of these commenters' concerns are addressed by the revisions reflected in the final rule concerning who does (and who does not) constitute a “covered service provider.” The Department also believes that the final rule's requirements, discussed below, establish clear standards as to what information concerning plan investments must be disclosed and by whom such information must be disclosed.
As discussed above, the final rule defines the term “covered service provider” to include fiduciaries to certain investment vehicles holding plan assets (paragraph (c)(1)(iii)(A)(
Paragraph (c)(1)(iv)(F) sets forth the investment-related disclosure obligations of fiduciaries to investment vehicles holding plan assets. These covered service providers (as described in paragraph (c)(1)(iii)(A)(
Paragraph (c)(1)(iv)(G) requires disclosure of the same investment-related compensation information described above from recordkeepers and brokers that make available investment alternatives for participant-directed individual account plans. This information must be provided with respect to each designated investment alternative for which recordkeeping or brokerage services will be provided pursuant to the contract or arrangement with the covered plan. Paragraph (c)(1)(viii)(C), discussed below, defines the term “designated investment alternative” for purposes of the final rule.
The Department recognizes that recordkeepers and brokers, unlike fiduciaries to investment vehicles holding plan assets, are not directly involved in the day-to-day management of the investment vehicles they represent, but rather, merely serve as intermediaries between plans and the issuers of these investment vehicles for purposes of furnishing such information; the final rule limits their liability under the regulation for the completeness and accuracy of the disclosed information. Specifically, paragraph (c)(1)(iv)(G)(
With regard to the timing of the required disclosures, the proposed regulation required that service contracts or arrangements include a representation by the service provider that all required information was provided to the responsible plan fiduciary before the contract or arrangement was entered into. This requirement was intended to ensure that the responsible plan fiduciary had the opportunity to consider all required disclosures before entering into a contract or arrangement with a service provider. The Department did not specify any time frame for this disclosure, believing it was best left to the responsible plan fiduciary and its potential service providers to work out the amount of time, prior to entering into the contract or arrangement, that the responsible plan fiduciary would need to review the disclosures. Some commenters suggested that the final regulation provide a more specific timeframe for the disclosures. However, the Department continues to believe that the flexibility described in the proposed regulation is appropriate and that the parties to the contract or arrangement can determine what is reasonable; accordingly, the Department did not adopt the suggestion.
Consistent with the proposal, the final rule, at paragraph (c)(1)(v), requires that a covered service provider provide the initial disclosures required by paragraph (c)(1)(iv), discussed above, to the responsible plan fiduciary reasonably in advance of the date the contract or arrangement is entered into, extended or renewed. The final rule, however, contains an exception for certain persons who become covered service providers within the meaning of paragraph (c)(1)(iii)(A)(
The final rule also includes a special timing provision for disclosure related to recordkeeping and brokerage services pursuant to paragraph (c)(1)(iv)(G). Information described in paragraph (c)(1)(iv)(G) relating to any investment alternative that is not designated at the time the contract or arrangement is entered into must be disclosed as soon as practicable, but not later than the date on which the investment alternative is designated by the responsible plan fiduciary.
In addition to requiring that certain information be disclosed to responsible plan fiduciaries before the parties enter into, or extend or renew, a contract or arrangement, the proposal included an ongoing obligation for the service provider to disclose to the responsible plan fiduciary any material change to the required information not later than 30 days from the date on which the service provider acquired knowledge of the change. A number of commenters requested additional guidance on what would be considered a “material” change. Some of the commenters' concerns related to the potential breadth of disclosures required by the proposal, with commenters expressing concern as to whether 30 days would provide sufficient time to identify material changes, especially in the context of packaged or bundled services that may involve parties other than the contracting service provider. Some commenters, especially large institutions with multiple affiliations, argued that 30 days was not enough time to discover changes to information relating to all of their business units or affiliates. Commenters also asserted that this requirement would result in voluminous, costly, and inefficient monitoring of disclosures, as well as potential “over-disclosure” of all changes to the extent it is not clear whether a particular change is material. Finally, commenters argued that disputes may result between various parties as to the beginning date for the 30-day compliance period, which may be subjective. Commenters suggested alternative approaches, for example defining materiality for this purpose, extending the 30-day period, or requiring an annual updating of all information in lieu of periodic disclosure of material changes. In response to these comments, the Department has made a number of changes.
Specifically, paragraph (c)(1)(v)(B) of the final rule requires that a covered service provider disclose a change (as opposed to a “material” change) to the initial information required to be disclosed pursuant to paragraphs (c)(1)(iv) as soon as practicable, but not later than 60 days from the date on which the covered service provider is informed of such change, unless such disclosure is precluded due to extraordinary circumstances beyond the covered service provider's control, in which case the information must be disclosed as soon as practicable. The Department was persuaded by commenters' concerns that it may take
The Department also eliminated the concept of materiality, persuaded by commenters that, without more specific definition, this standard would not add to a covered service provider's understanding of what types of changes must be disclosed. Accordingly, if information previously disclosed to a responsible plan fiduciary changes, the responsible plan fiduciary must be notified. The Department believes that a responsible plan fiduciary should be made aware if any change occurs, for example, in the services that the covered service provider will be providing for the plan, the fiduciary status of the service provider, or the compensation that the service provider will be paid.
Paragraph (c)(1)(vi) of the final rule addresses the obligations of the covered service provider to provide, upon request of the responsible plan fiduciary or plan administrator, any other information relating to the compensation received in connection with the contract or arrangement that is required for the covered plan to comply with the reporting and disclosure requirements of Title I of ERISA and the regulations, forms and schedules issued thereunder. This provision is very similar to the proposal. A few commenters asked the Department to provide that only “reasonable” requests from the responsible plan fiduciary or plan administrator must be accommodated under this provision. The Department did not include this concept in the final rule, because it did not want to create issues as to the “reasonableness” of a particular request. The Department believes that the final rule minimizes the potential for abuse by restricting covered service provider's disclosure obligation to information that is “required” for the covered plan to comply with its reporting and disclosure obligations. Commenters also requested guidance from the Department that the responsible plan fiduciary or plan administrator may not request that this information be disclosed or presented in any particular format. The Department expects that the covered service provider will furnish the information in a manner that enables effective use of the information to satisfy ERISA's Title I reporting and disclosure requirements; no further obligation should be inferred from this requirement.
Finally, a few commenters asked that the Department clarify that this disclosure obligation was limited to information specifically required by a responsible plan fiduciary or plan administrator to complete a Form 5500 annual report. The Department declined to accept this suggestion; the Department expects that this provision will require service providers to disclose information that is necessary in order to comply with ERISA's reporting and disclosure obligations in circumstances other than the Form 5500 annual report, for example in making required disclosures concerning plan and investment fees and expenses to participants and beneficiaries. The Department notes that this is not a limitless obligation; the rule limits this provision to information relating to the contract or arrangement, and the compensation received thereunder, that is “required” for the covered plan to comply with the reporting and disclosure obligations of Title I.
The proposal required that the service provider disclose information requested by the responsible plan fiduciary or plan administrator in order to comply with ERISA's reporting and disclosure obligations, but did not specify any time frame for the service provider to respond to such a request. Some commenters requested additional guidance concerning when the covered service provider would be obligated to provide such information. In response, the Department added a new timing requirement in paragraph (c)(1)(vi)(B) of the final rule. A covered service provider must disclose the requested information not later than 30 days following receipt of a written request from the responsible plan fiduciary or covered plan administrator, unless such disclosure is precluded due to extraordinary circumstances beyond the covered service provider's control, in which case the information must be disclosed as soon as practicable. The Department believes that this provision will provide more specificity to the parties in complying with this disclosure requirement, but also accommodate the practical reality that a covered service provider may, because of extraordinary matters beyond its control, be unable to satisfy the general standard.
The proposed regulation did not provide specific relief for disclosure errors or omissions by service providers. As a result, many commenters argued that the final regulation should be revised to include such relief for service providers in certain circumstances. Many commenters argued that inadvertent mistakes are inevitable, in spite of the best efforts of all involved, and that it would be inappropriate for a service provider to be subject to a prohibited transaction in these circumstances. These commenters believed that, under the proposal, a prohibited transaction would result if any error, no matter how small, existed in the detailed disclosures required by the rule. Commenters felt this risk was especially significant in the case of a package of services involving multiple service providers. These commenters asserted that, with required information coming from different, and in some cases unrelated, parties, the likelihood of “innocent” mistakes increases. Commenters were not comforted by the proposal's limitation that information must be provided “to the best of the service provider's knowledge,” because in some cases, such as a typographical error, the service provider may “know” that the information is inaccurate. Further, commenters argued that these errors would not be covered by the material change provision in the proposal, because many minor errors would not be material. Finally, commenters noted that the material
The Department was persuaded by commenters that relief should be provided so that certain inadvertent errors and omissions do not result in a prohibited transaction. Accordingly, paragraph (c)(1)(vii) of the final rule provides that no contract or arrangement will fail to be reasonable under the regulation solely because the covered service provider, acting in good faith and with reasonable diligence, makes an error or omission in disclosing the information required by the regulation. However, the covered service provider must disclose the correct information as soon as practicable, but not later than 30 days from the date on which the covered service provider knows of such error or omission.
The Department notes that the class exemption, included as part of this regulation (paragraph (c)(1)(ix)), is meant to address situations in which a responsible plan fiduciary discovers an error or other deficiency in the disclosure. Paragraph (c)(1)(vii) is meant to provide the parties an opportunity to avoid a prohibited transaction by addressing errors up front. Once a prohibited transaction has occurred, the responsible plan fiduciary will need to rely on the relief provided by the class exemption, discussed below.
Paragraph (c)(1)(viii) of the final rule defines the terms “affiliate,” “compensation,” “designated investment alternative,” “recordkeeping services,” “responsible plan fiduciary,” and “subcontractor.”
Specifically, paragraph (c)(1)(viii)(A) provides that a person's or entity's “affiliate” directly or indirectly (through one or more intermediaries) controls, is controlled by, or is under common control with such person or entity; or is an officer, director, or employee of, or partner in, such person or entity. The rule also provides that unless otherwise specified, an “affiliate” in paragraph (c)(1) refers to an affiliate of the covered service provider. This definition essentially is unchanged from the proposal, except that the definition no longer includes the concept of an “agent” of the covered service provider. The Department was persuaded by commenters that the notion of an “agent” of the covered service provider is unclear, overly broad, and not consistent with commonly understood “affiliate” arrangements. To the extent some commenters were concerned that this term might pull subcontractors of a covered service provider into affiliated status, the Department notes that the final rule specifically addresses the role of a covered service provider's subcontractors elsewhere.
Paragraph (c)(1)(viii)(B) defines “compensation” for purposes of the final rule as anything of monetary value (such as money, gifts, awards, and trips), but does not include non-monetary compensation valued at $250 or less, in the aggregate, during the term of the contract or arrangement. This is slightly different from the proposal, which did not include the $250 de minimis rule. The Department added this provision in response to suggestions from a number of comments concerning the cost and burden of tracking insignificant non-monetary gifts.
The definition of “compensation” includes descriptions of both “direct” and “indirect” compensation. Subparagraph (
Subparagraph (
Paragraph (c)(1)(viii)(C) defines a “designated investment alternative” as any investment alternative designated by a fiduciary into which participants and beneficiaries may direct the investment of assets held in, or contributed to, their individual accounts. The term “designated investment alternative” does not include brokerage windows, self-directed brokerage accounts, or similar plan arrangements that enable participants and beneficiaries to select investments beyond those specifically designated. This definition is consistent with the definition used by the Department for purposes of defining “designated investment alternative” in its proposed participant-level fee disclosure regulation (see proposed § 2550.404a-5(h)(1), 73 FR 43041).
Paragraph (c)(1)(viii)(D) defines “recordkeeping services” as including services related to plan administration and monitoring of plan and participant and beneficiary transactions such as enrollment, payroll deductions and
Paragraph (c)(1)(viii)(E) defines a “responsible plan fiduciary” as a fiduciary with authority to cause the covered plan to enter into, or extend or renew, the contact or arrangement. This is consistent with use of the phrase “responsible plan fiduciary” in the Department's proposal, except that for ease of reference it has been separately included in the definitions section.
Paragraph (c)(1)(viii)(F) defines a “subcontractor” as any person or entity (or an affiliate of such person or entity) that is not an affiliate of the covered service provider and that, pursuant to a contract or arrangement with the covered service provider or an affiliate, reasonably expects to receive $1,000 or more in compensation for performing one or more services described in paragraph (c)(1)(iii)(A) through (C) of the regulation provided for by the contract or arrangement with the covered plan. The Department added this concept to the final rule in order to clarify that, in certain instances, a covered service provider will be required to report compensation received by a subcontractor to the covered service provider or an affiliate. For example, if a “covered service provider” that contracts with a plan to provide recordkeeping in turn subcontracts to outsource all or part of those services to another party, then that party is a “subcontractor,” because it is carrying out some or all of the covered service provider's obligations under the contract or arrangement with the covered plan. In certain cases, the covered service provider may have to disclose compensation received by this subcontractor.
The class exemption from the restrictions of ERISA section 406(a)(1)(C) was proposed by the Department separately from the proposed regulation. It was intended to relieve a responsible plan fiduciary from engaging in a prohibited transaction under certain circumstances when the requirements of the regulation have not been met. The Department received five separate public comments in response to the invitation for comments contained in the notice of pendency relating to the proposed class exemption, in addition to comments that were made as part of information received from the public on the proposed regulation. This section discusses these comments and modifications that have been made to the final class exemption, which now is being granted and included as section (c)(1)(ix) of the final rule.
A few commenters requested that the proposed class exemption be expanded to protect service providers from potential excise taxes under the Code. Specifically, these commenters wanted the class exemption to cover service providers that are responsible for making the rule's required disclosures in certain circumstances: For example, when disclosure is made on behalf of a third party, and the service provider, acting as a conduit, either does not receive the requested information from the third party, or it is later discovered that the information received from the third party was erroneous; when an inadvertent error is made in providing the responsible plan fiduciary with the detailed information required by the proposal, for example, some of the narrative information about conflicts of interest, commenters argued, was vaguely described or overly broad; or when a responsible plan fiduciary fails to execute a service contract or arrangement. The Department has determined not to extend specific prohibited transaction exemption relief from the prohibitions of section 406(a) to covered service providers in the same way that the final class exemption covers responsible plan fiduciaries who attempt to address a service provider's disclosure failure. However, the Department notes that the final rule clarifies that execution of a formal “contract” is not required, and gives covered service providers more opportunities to address disclosure failures, such as errors and omissions. The final rule also provides covered service providers with relief for “passing through” certain regulated disclosure materials that include information concerning plan-designated investment alternatives.
One commenter suggested that the proposed class exemption be expanded to cover prohibited transactions described under section 406(a)(1)(D) of ERISA. Section 406(a)(1)(D) prohibits the transfer to, or use by or for the benefit of, a party in interest, of any assets of the plan. The commenter stated that if the statutory exemption under section 408(b)(2) is temporarily unavailable for a particular service arrangement, but the covered service provider continues to be engaged by the plan to provide necessary services and receives payments, section 406(a)(1)(D) would be violated if plan assets are used to compensate the covered service provider during such time. The Department modified the operative language of the final class exemption to provide relief from section 406(a)(1)(D) to cover, among other things, situations when a responsible plan fiduciary decides to continue a service arrangement with a covered service provider, and to continue paying such covered service provider's fees, during periods when the parties are attempting to cure a disclosure failure by the covered service provider pursuant to the conditions of this exemption.
Other commenters observed that the proposed class exemption would apply if the responsible plan fiduciary unknowingly enters into a service contract that does not satisfy the disclosure obligations of the regulation, provided that certain conditions are met. The proposal required the responsible plan fiduciary to request the missing information, in writing, from the service provider, and the covered service provider would have been deemed to have failed to satisfy its disclosure obligations if it did not provide the information requested by the responsible plan fiduciary within 90 days. In this regard, the commenters requested that a satisfactory and timely service provider response to the 90-day request be deemed to satisfy the disclosure requirements and that the proposed class exemption be revised to provide relief in such instances. One commenter stated that a service provider should not be treated as failing to comply with a responsible plan fiduciary's request for information, for purposes of the exemption, merely because the covered service provider is unable to complete a response within 90 days of the request, despite good faith efforts on the part of the service provider to obtain such information.
The Department has determined that, under the exemption, a responsible plan fiduciary should not be permitted to give a covered service provider an unlimited amount of time to address a disclosure failure. Like the proposal, the final exemption requires that disclosure failures be addressed by the parties within specific timeframes. Under the final exemption, if the covered service
Further, some commenters requested that the Department extend the proposed 30-day time period for a responsible plan fiduciary to notify the Department of a covered service provider's failure to disclose. One commenter argued that many plan fiduciary committees do not meet on a monthly basis, and it may be difficult for responsible plan fiduciaries to make final determinations about retention of covered service providers within a 30-day period. The Department did not extend this time period in the final class exemption, which continues to require that notice to the Department be made not later than 30 days following the earlier of the covered service provider's refusal to furnish the requested information or end of the 90-day period following the responsible plan fiduciary's written request.
Finally, one commenter suggested that the exemption should only require responsible plan fiduciaries to notify the Department of a disclosure failure in specific instances, such as when a disclosure failure is made by plan service providers who are ERISA fiduciaries, or when the disclosure failure relates specifically to information about a service provider's fees or other compensation. This approach has not been adopted. The Department believes that all disclosures required under the final regulation by all covered service providers are relevant for purposes of a responsible plan fiduciary's duty to provide notice to the Department of a service provider's failure to correct or address such failures in a timely fashion.
The class exemption is set forth in the final regulation in paragraph (c)(1)(ix). The Department incorporated the exemptive relief into the final regulation in order to facilitate reference by interested persons. The specific conditions applicable to covered transactions are described in this paragraph. These conditions require, among other things, a responsible plan fiduciary to notify the Department under certain circumstances of a covered service provider's failure to comply with its disclosure obligations. These conditions also set forth the timing, content and other requirements applicable to the notice required to be filed with the Department by the responsible plan fiduciary.
The exemption provides relief from the restrictions of section 406(a)(1)(C) and (D) of ERISA to a responsible plan fiduciary, notwithstanding any failure by a covered service provider to comply with its disclosure obligations, provided that the conditions set forth in paragraph (c)(1)(ix)(A) through (G) are met.
Paragraph (c)(1)(ix)(A) of the regulation requires that the responsible plan fiduciary did not know that the covered service provider failed or would fail to make required disclosures and reasonably believed that the covered service provider disclosed the information required by the final rule. This condition is intended to reinforce the principle that the plan fiduciary must have entered into, and thereafter continued, an arrangement for services with a reasonable belief that the covered service provider met, and would continue to meet, the requirements of the final rule and without knowing of the covered service provider's disclosure failures.
Paragraph (c)(1)(ix)(B) of the regulation requires that, upon discovering that the covered service provider failed to disclose the required information, the responsible plan fiduciary must request in writing that the covered service provider furnish such information. If the covered service provider fails to comply with the responsible plan fiduciary's written request within 90 days, paragraph (c)(1)(ix)(C) requires that the responsible plan fiduciary notify the Department. The Department believes that this condition, along with a covered service provider's exposure to excise tax liability under the Code, will provide covered service providers with a sufficient incentive to address disclosure failures within a reasonable time.
Paragraph (c)(1)(ix)(D) through (F) of the regulation sets forth the content, timing, and other requirements applicable to notifying the Department of a covered service provider's failure to meet its disclosure obligations. Paragraph (c)(1)(ix)(D) states that the notice to the Department must contain the following information: (
Paragraph (c)(1)(ix)(E) provides that the responsible plan fiduciary shall file a notice with the Department not later than 30 days following the earlier of: (
Paragraph (c)(1)(ix)(F) provides that the notice should be sent to the U.S. Department of Labor, Employee Benefits Security Administration, Office of Enforcement, 200 Constitution Ave., NW., Suite 600, Washington, DC 20210. Such a notice may also be sent electronically to:
Finally, paragraph (c)(1)(ix)(G) of the regulation provides that, following the responsible plan fiduciary's discovery that the covered service provider failed to disclose required information, the fiduciary shall determine whether to terminate or continue the contract or arrangement with such service provider. In making such a determination, the responsible plan fiduciary shall evaluate the nature of the failure, the availability, qualifications and costs of potential replacement service providers, and the covered service provider's response to notification of the failure. However, the provisions contained in paragraph (c)(1)(ix)(G) do not abrogate or supersede the duties imposed upon a responsible plan fiduciary by section 404(a) of ERISA, which would also require the fiduciary to consider what steps to take in response to the covered service provider's nondisclosure.
Paragraph (c)(1)(x) of the regulation states that the regulation does not supersede any State law that governs disclosures by parties that provide services to covered plans, except to the extent that such law prevents application of the regulation. The Department understands that the service provider relationship with the plan may be subject to a variety of State laws, such as contract, tax, consumer protection, and other laws. The Department's regulation is not intended to supersede any of these State laws, which may require disclosures by parties that provide services described in the regulation, except to the extent that compliance with such State law would make compliance with this regulation impossible or would otherwise conflict with one of the regulation's protections.
Paragraph (c)(1)(x) of the regulation addresses only the preemptive effect of the regulation itself, and does not speak to any preemptive effect that ERISA Title I generally, or ERISA section 514 specifically, may have on State laws that regulate parties that provide services to employee benefit plans. A State law that requires disclosures in connection with services or service provider contract or arrangements, regardless of whether the services are provided directly to an ERISA plan or other entity, generally would not be viewed by the Department as “relating to” employee benefit plans within the meaning of ERISA section 514 or as otherwise preempted by Title I of ERISA.
Code section 4975(d)(2) contains a provision that is parallel to ERISA section 408(b)(2). Several commenters questioned the interplay of the proposal and section 4975 of the Code. These commenters explained that this interplay was unclear, because the proposal did not explicitly include corresponding amendments to the regulations under Code section 4975. Commenters generally sought clarification in this regard, asserting their belief that the Department has authority to issue guidance under Code section 4975(d)(2) and should confirm that compliance with the regulation will be required for a covered service provider to avoid the excise taxes imposed by Code section 4975.
The Department added paragraph (c)(1)(xi) of the interim final regulation to clarify this issue. This paragraph provides that, in accordance with the transfer of authority of the Secretary of the Treasury to promulgate regulations of the type published herein to the Secretary of Labor, pursuant to section 102 of the Reorganization Plan No. 4 of 1978, 5 U.S.C. App. 214 (2000 ed.), which was effective December 31, 1978, under the final regulation, all references to section 408(b)(2) of the ERISA and the regulations thereunder should be read to include reference to the parallel provisions of section 4975(d)(2) of the Code and the regulations thereunder.
If a covered service provider to a covered plan fails to disclose the information required by the final rule, then the contract or arrangement will not be “reasonable.” Therefore, the service contract or arrangement will not qualify for the relief from ERISA's prohibited transaction rules provided by section 408(b)(2). The resulting prohibited transaction will have consequences for both the responsible plan fiduciary and the service provider. The responsible plan fiduciary, by causing the transaction, will have violated ERISA section 406(a)(1)(C) and (D). The service provider, as a “disqualified person” under the Code's prohibited transaction rules, will be subject to the excise taxes that result from the service provider's participation in a prohibited transaction under Code section 4975.
The Department continues to believe that the application of an excise tax will provide incentives for all parties to service contracts or arrangements to cooperate in exchanging the disclosures required by the final regulation. However, as noted above, the Department does not believe that an otherwise diligent plan fiduciary should be penalized as a result of a failure on the part of service provider to make the required disclosure, thus the final regulation includes the exemptive relief described above (see paragraph (c)(1)(ix) of the interim final rule).
Many commenters expressed concern with the Department's proposal that the final regulation and class exemption would be effective 90 days after their publication in the
In response to these concerns, the Department revised the date by which the interim final rule will apply to the disclosures required for a compliant contract or arrangement. Specifically, the rule will be effective one year after the date of its publication in the
As explained above in the section entitled “Scope—Covered Plans,” the Department is reserving paragraph (c)(2) of the interim final rule for a comprehensive disclosure framework applicable to “reasonable” contracts or arrangements for welfare plans to be developed by the Department. The Department believes that fiduciaries and service providers to welfare benefit plans would benefit from regulatory guidance in this area for the same reasons that apply to defined contribution plans and defined benefit plans. However, the Department is persuaded that there are significant differences between service and compensation arrangements of welfare plans and those involving pension plans and that the Department should develop separate, and more specifically tailored, disclosure requirements under ERISA section 408(b)(2) for welfare benefit plans.
The Department did not propose any changes to the existing requirements addressing termination of contracts or arrangements for purposes of section 408(b)(2) (
Other commenters raised questions as to whether certain fees and market value adjustments, generally associated with insurance or insurance-type services and investments, constitute “penalties” for purposes of this paragraph of the regulation. The regulation provides specifically that “a minimal fee in a service contract which is charged to allow recoupment of reasonable start-up costs is not a penalty.” The Department believes that questions as to whether, for any particular contract, the charges for contract termination are in fact “penalties,” rather than a service provider's recoupment of reasonable start-up costs, are inherently factual questions; accordingly, the Department did not amend the rule in response to these comments. After consideration of all of the comments on paragraph (c)(2) of the proposal, the Department has determined to adopt that paragraph, without change, in the interim final rule, except that this provision has been moved to a new paragraph (c)(3) of the interim final rule.
A number of commenters requested clarification of the effect of the Department's proposed regulation on statutory and administrative exemptions that already are in place. Comments on these issues were received from industry groups that represent banks, insurance companies and broker-dealers for securities and other financial instruments, as well as from financial institutions. According to the commenters, the affected financial firms provide services to all types of plans, including many large plans, and that prohibited transaction issues are raised not only with service arrangements but with specific financial transactions occurring in the ordinary course of their business. These transactions often require reliance upon one or more prohibited transaction exemptions, some of which are periodically amended to reflect current industry practices. Commenters generally did not address how the proposal would affect plan service arrangements that rely on existing statutory exemptions. However, a few commenters asserted that they would not be subject to the disclosure requirements under the regulation because they are relying on other statutory exemptions to avoid prohibited transactions under ERISA section 406.
The Department is expressing no view at this time on the relationship of this interim final rule to existing statutory and administrative exemptions. The Department will, however, be reviewing these issues in the future on a case-by-case and exemption-by-exemption basis.
Following the Department's careful review of the extensive public record on this regulatory initiative, including over 100 comments on the proposal and many supplemental materials furnished in connection with the Department's public hearing on this initiative, the regulation published today in this Notice contains a number of provisions that differ significantly from the proposal. The Department believes that this regulation addresses the many technical concerns raised with respect to the proposal and clarifies with sufficient specificity the nature of the required disclosure obligations and the parties that must comply with such obligations. However, in view of the importance of this initiative, and the potentially significant effects that the final regulation and class exemption may have on plan fiduciaries and service providers, the Department decided to publish this regulation as an interim final regulation.
The Department invites comments from interested persons on all aspects of the interim final regulation, in accordance with the instructions for submitting comments described above in the
Compensation arrangements in the market for retirement plan services are complex. Payments from third parties and among service providers can create conflicts of interest between providers and their clients. For example, a 401(k) plan vendor may receive “revenue sharing” from a mutual fund that it makes available to clients. A consultant may receive a “finder's fee” from an investment adviser it recommends to clients. Such compensation arrangements and the conflicts they create are myriad and largely hidden from view. Their opacity obscures the true cost of plan services and allows harmful conflicts to persist in the market. Plans may pay more than they realize for products and services that unbeknownst to them are tainted by conflicts. Meanwhile service providers may reap excess profits.
Under ERISA, fiduciaries have a duty to consider a service provider's compensation from all sources, but service providers are not obligated to disclose compensation from other sources. This interim final rule would require service providers to proactively disclose such arrangements to plan clients.
To the extent that plan fiduciaries are unable to obtain relevant compensation information, or unable to use it to choose among service providers in a manner that upholds their fiduciary duty, a failure exists in the market for services for employee benefit plans. The market for retirement plan services is characterized by acute information asymmetry. The information costs of plan service providers are far lower than their clients'. Vendors are specialists in the design of their products, services, and compensation arrangements, and are continually engaged in marketing to plan sponsors. Plan sponsors often lack this degree of specialization. Even very large, relatively sophisticated plan sponsors shop for services only periodically, generally once every three to five years. Smaller, less sophisticated plan sponsors face still higher information costs. As a result, vendors are able to maintain an information advantage over their plan sponsor clients.
Vendors have a strong incentive to use their information advantage to distort market outcomes in their own favor. Current ERISA rules hold plan sponsors rather than vendors accountable for evaluating the cost and quality of plan services. And vendors can reap excess profit by concealing indirect compensation (and attendant conflicts of interest) from clients, thereby making their prices appear lower and their product quality higher. Consider one typical arrangement: A pension consultant receives a finder's fee from an investment adviser when he recommends that adviser to a plan sponsor. The plan sponsor does not know that the consultant is receiving the finder's fee—an expense the plan bears indirectly. The plan sponsor relies on the consultant to evaluate the quality of the adviser's services, but does not know that the consultant's recommendation and evaluation are subject to a conflict of interest.
The Department has identified evidence that information gaps exist in certain circumstances and that these gaps may distort market results. For example:
• An Advisory Council established under ERISA to advise the Secretary of Labor found that “the lack of transparency in this area has led to an inefficient market where it is extremely difficult for the plan sponsor to determine either the absolute level of fees, or the flow of fees,
• The Securities and Exchange Commission found that pension consultants “typically” do not disclose to clients that they receive compensation from the same money managers that they may recommend, and recommended that pension consultants adopt “policies and procedures to ensure that all disclosures required to fulfill fiduciary obligations are provided to prospective and existing advisory clients, particularly regarding material conflicts of interest [which should] ensure adequate disclosure regarding the consultant's compensation.”
• According to GAO, “[s]pecific fees that are `hidden' may mask the existence of a conflict of interest * * * If the plan sponsors do not know that a third party is receiving these fees, they cannot monitor them, evaluate the worthiness of the compensation in view of services rendered, and take action as needed.”
• Many DC retirement plan sponsors have “difficulty” obtaining a clear understanding of total administrative fees charged (13 percent), a clear explanation of the normal fund operating expenses of the funds in the plan (9 percent), a clear description of all the revenue sharing arrangements that the recordkeeper has with the mutual funds included in the plan (13 percent), and what it costs the provider to administer the plan (20 percent).
• One comment
Under current rules, a large, sophisticated plan sponsor may be able to uncover adequate information to optimize his purchase, if the value he expects to reap is sufficient to offset his information cost. The sophisticated plan sponsor's cost to uncover the information is likely to be far higher than would be the vendor's cost to disclose it. A smaller or less sophisticated plan sponsor cannot economically uncover such information—the value he stands to gain will not offset his information cost. A regulatory action to mandate proactive disclosure will lower information costs for plan sponsors who currently actively seek this information. In addition, to the extent the information provided is
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and, therefore, subject to the requirements of the Executive Order and review by the Office of Management and Budget (OMB). Under section 3(f) of the Executive Order, a “significant regulatory action” is an action that is likely to result in a rule (1) Having an effect on the economy of $100 million or more in any one year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The Department has determined that this action is “economically significant” under section 3(f)(1) because it is likely to have an effect on the economy of $100 million or more in any one year.
Executive Order 12866 requires an economically significant regulation to include an assessment of the costs and benefits of potentially effective and reasonably feasible alternatives to a planned regulation, and an explanation of why the planned regulatory action is preferable to the identified potential alternatives. The Department considered but rejected a number of alternative approaches to correct the market failure and redress abuses.
• Once fiduciaries are legally empowered to obtain full disclosure of indirect compensation arrangements, failure to do so would almost certainly constitute a fiduciary breach. This sets a trap for the unwary fiduciary. The unsophisticated fiduciary is better served by a proactive disclosure that serves as both a notice of his duty and a means to discharge his obligation.
• The cost of disclosure-on-demand could turn out to be higher than the cost of proactive disclosure. For example, it would now include the cost to plan sponsors of making the requests—as well as their cost of determining what to ask. Also the number of disclosures might be higher under a disclosure-on-demand system than under a proactive disclosure system. All fiduciaries would have a duty to request disclosure, so perhaps nearly all would, and many fiduciaries might ask in increments for information that would have been consolidated into a single proactive disclosure under a proactive disclosure system, therefore multiplying the total number of disclosures. The Department has not developed a cost estimate for disclosure-on-demand, but it is likely that such an estimate would be as high as, or higher than, the Department's estimate for proactive disclosure.
• Disclosure-on-demand would also fail to educate unsophisticated fiduciaries who might not request full disclosure. Proactive disclosure might raise awareness for some unsophisticated fiduciaries.
As stated earlier in this preamble, the Department is considering amending the rule in the future to include a summary disclosure requirement. To assist the Department in its decision regarding whether to include such a requirement in the final rule, interested persons are encouraged to submit comments regarding the potential costs and time burden necessary for covered service providers, and any other parties, to comply with such a requirement, the anticipated benefits to responsible plan fiduciaries of including a summary disclosure requirement (such as time and cost savings), and how to most effectively design a summary disclosure statement to ensure both its feasibility and usefulness in helping the Department achieve its objectives. If the Department is convinced that the benefits would outweigh the costs, the final regulation may be revised.
According to 2006 Form 5500 filings, there exist nearly 49,000 defined benefit pension plans with over 42 million participants and almost 646,000 defined contribution pension plans with approximately 80 million participants. Out of these pension plans, about 37,000 are small defined benefit plans and 576,000 small individual account plans.
The interim final regulation applies to contracts or arrangements between plan fiduciaries and service providers as fully discussed in Section B., 1., above.
In general, only plans with 100 or more participants that have made payments to a service provider of at least $5,000 are required to file the Form 5500 Schedule C. These plans are also required to report the type of services provided by each service provider. The Department counted the service providers most likely to provide the covered services.
The Department acknowledges that this estimate may be imprecise. On the one hand, some of these service providers may not be covered service providers if they do not meet all the above specified requirements, but with the limited Schedule C data it is not possible to further refine this group. On the other hand, small plans generally do not have to fill out Schedule C which would underestimate the number of covered service providers if a substantial number of them service only small plans. However, the Department believes that most small plans use the same service providers as large plans and therefore the estimate based on the Schedule C filings by large plans is acceptable.
Schedule C data was also used to count the number of covered plan-service provider arrangements. On average, defined benefit plans employ more covered service providers per plan than defined contribution plans, and large plans use more covered service providers per plan than small plans. In total, the Department estimates that defined benefit plans have over 119,000 arrangements with covered service providers, while defined contribution plans have over 780,000 arrangements.
A substantial part of the cost of the final regulation depends on the means of disclosures between covered service providers and plan fiduciaries. Paper disclosures involve much higher costs than electronic disclosures. Thus, as at least one trade group commented, the industry is interested in taking advantage of electronic disclosure, if at all possible.
Mandatory proactive disclosure will reduce sponsor information costs, discourage harmful conflicts, and enhance service value. Additional benefits will flow from the Department's enhanced ability to redress abuse. Although the benefits are difficult to quantify, the Department is confident they more than justify the cost. In accordance with OMB Circular A-4,
The record establishing the need for this regulatory action (see above) documents that plan sponsors' information cost is higher than vendors', and that many sponsors now expend substantial resources to acquire information. Mandatory proactive disclosure will make the information fiduciaries need available to them at lower acquisition cost.
For sponsors in these circumstances, mandatory, proactive, comprehensive disclosure will reduce the difficulty in obtaining the needed information. These sponsors will have the same information as before but will acquire it less expensively. For example, if 13 percent
As discussed above, many surveyed DC retirement plan sponsors are “dissatisfied” with the level of transparency—23 percent flatly say the current level of fee disclosure does not meet their needs. These sponsors will now acquire critical information that was previously inaccessible or too costly to obtain. Currently, some plan sponsors may simply fail to seek critical information. Mandatory, proactive disclosure will help these sponsors understand and satisfy their fiduciary obligations. For those who otherwise would not know what questions to ask, or what information to consider, the disclosure provides the map. This additional information will help facilitate better decisions as discussed in the next two sections.
Indirect compensation arrangements can be either harmful or beneficial. Transparency will help drive harmful conflicts from the marketplace while sustaining arrangements that are beneficial for plans.
Harmful arrangements generally are those that are tainted by unmitigated conflicts. A plan's service providers may strike deals that profit one another at the plan's expense. Such arrangements may thrive in the shadows, but tend to wither in sunlight. These arrangements exist today in the market for plan services precisely because information asymmetries obscure them. Mandatory proactive disclosure will reduce the asymmetry, creating a sunnier climate that is less friendly to harmful arrangements.
Beneficial arrangements generally are those in which a plan's service providers, in competition to provide the best value to the plan, enter into transactions among themselves that leverage their respective comparative advantages to deliver higher quality or lower cost for the plan. Such arrangements are now evident in the segment of the plan services that works best—namely, the very large plan segment. There are numerous examples where large plan sponsors, after thoroughly evaluating the quality and compensation structures of competing vendors, choose service arrangements that involve indirect compensation. Transparency is a bedrock of such arrangements. For example, some arrangements establish formulas whereby the fees the sponsor pays to a service provider will be reduced as a function of the indirect compensation the provider receives. Mandatory, proactive disclosure will be friendly to such arrangements because sunlight will reveal their superiority to harmful arrangements.
Fiduciaries armed with more complete information can make informed purchases and thereby derive better value for plans. More complete information is a benefit of mandatory disclosure that will depend sequentially on three variables: The extent of gaps in critical information, the extent to which closing these gaps will improve fiduciary decisions, and the degree to which improved decisions will improve value.
Overall, the evidence suggests that the value of fiduciary decision-making will improve once fiduciaries are apprised of and consider service providers' indirect compensation sources.
While the improvement in the value of fiduciary decision-making is difficult to quantify, the Department believes that it has the potential to be very large. If just 16 percent of all plan assets realize a fall of just 0.6 basis point (0.006 percent of plan assets), the savings would exceed the costs of the rule, which is estimated at $408 million over 10 years.
As previously stated, the Department believes that the application of an excise tax will provide incentives for all parties to service contracts or arrangements to cooperate in exchanging the disclosures required by the final regulation. However, if there continues to be abusive conduct by rogue service providers such as misrepresentation of compensation arrangements and attendant conflicts, this rule mandating disclosure will equip the Department to better redress such abuse. Enhanced enforcement will deter abuse, thereby directly benefiting potential victims, and will promote confidence and thereby encourage sponsors to offer plans.
The regulation requiring proactive disclosure encourages compliance in three related ways:
• If the service provider fails to provide the specific information required by the regulation, it is subject to the imposition of an excise tax by the Internal Revenue Service. Thus, there is a direct sanction against the service provider for giving false, misleading, or insufficient statements to plan fiduciaries.
• The regulation specifies the disclosure that fiduciaries must obtain to avoid a prohibited transaction, and ensures that they will receive the information because of the consequences to the service provider of non-disclosure (imposition of the excise tax).
• Because the regulation creates a roadmap for disclosure, it will be much easier for the courts, the Department, and regulated parties to determine whether they have complied with the law. In the event of non-compliance, there are clear enforcement consequences for both the plan fiduciary and the service provider.
The Department pursues a comprehensive program of enforcement and compliance assistance (including outreach and education) to ensure that fiduciaries understand and properly discharge their duties under ERISA, at reasonable cost.
• The Department educates plan fiduciaries about their obligations under ERISA by conducting numerous educational and outreach activities, such as a nationwide series of 33 seminars presented to date as part of the Department's campaign entitled “Getting It Right—Know Your Fiduciary Responsibilities,” which includes a discussion of the importance of selecting plan service providers and the role of fee and compensation considerations.
• The Department also makes a variety of materials available on its Web site to educate plan fiduciaries about service provider fees and relationships, including its 401(k) Plan Fee Disclosure worksheet, a publication entitled “Understanding Retirement Plan Fees and Expenses,” and, in coordination with the Securities and Exchange Commission, a series of tips concerning fees and conflicts of interest for plan fiduciaries to use when selecting pension consultants.
ERISA's standards of fiduciary conduct already obligate fiduciaries to obtain and consider adequate information. They are liable for any plan losses attributable to their failure to do so. This rule harmonizes the prohibited transaction rules with the fiduciary rules, so fiduciaries, in addition to being obligated to obtain and consider such information, are also equipped to do so at minimum cost.
The Department estimated costs for the rule over the ten-year time frame for purposes of this analysis and used information from the quantitative characterization of the service provider market presented above as a basis for these cost estimates. This characterization did not account for all service providers, but it does provide
Although all affected service providers are assumed to incur these initial costs, it is likely that service providers with complex fee arrangements and conflicts of interest would require more time to comply. The Department assumes that the number of service providers with more complex arrangements can be approximated by the number of unique service providers who are reported on the Schedule C as having received $1 million or more in compensation (nearly 1,000 service providers).
The Department assumes that covered service providers with complex arrangements will require on average 24 hours of legal professional time at a cost of approximately $119 per hour and on average 80 hours of financial professional time at a cost of almost $63 per hour to comply with the rule. Non-complex service providers would require only three hours of legal professional time and 13 hours of financial professional time. Using the number of unique service providers identified in the quantitative analysis presented above (nearly 10,000 service providers), this cost is estimated to be about $17.9 million.
The Department also has estimated the initial compliance review and implementation costs for service providers newly entering the market (“new service providers”) to provide services to plans (either for the first time or by re-entry) beginning in 2012 and each year thereafter. Based on data from the 2005 and 2006 Form 5500, the Department assumes that about eight percent of all service providers will be new in each year subsequent to 2011, and that these service providers will incur the same compliance review and implementation costs as existing service providers. Based on the foregoing, the Department estimates that new service providers will incur costs of approximately $1.5 million in 2012 and thereafter. Estimates are reported in Table 3.
In 2012 and subsequent years, the regulation will cause additional disclosures to be made between covered
Paragraph (c)(1)(vi) requires service providers to provide any other information relating to compensation received in connection with the contract or arrangement that is required for the covered plan to comply with the reporting and disclosure requirements of Title I of ERISA and the regulations, forms, and schedules issued thereunder upon the request of responsible plan fiduciaries or plan administrators of covered plans. The Department is not aware of a basis for determining the number of requests that responsible plan fiduciaries or plan administrators will make; therefore, it assumes that approximately ten percent (almost 45,000) of responsible plan fiduciaries will request additional information annually. The Department further assumes that service providers will already have this information available, as it is required to comply with other legal requirements. Therefore, the Department estimates that it will take clerical staff two minutes per request at an hourly labor cost of approximately $26 to prepare the information. Based on the foregoing, the Department estimates that the annual cost to disclose information upon request will total almost $39,000 as shown in Table 3.
Paragraph (c)(1)(v)(B) generally requires service providers to disclose any changes to the general information as soon as practicable, but no later than 60 days from the date the covered service provider is informed of such change. The Department assumes that one-half hour of legal professional time and one-third hour of a financial professional time will be required to update the disclosures. The Department also assumes that changes in plan disclosures will occur at least once every three years, because plans normally conduct requests for proposal (RFPs) from service providers at least once every three to five years. If it is assumed that an equal number of plans conduct an RFP in any given year, then approximately 35 percent of arrangements will require an updated disclosure every year. In addition, half of these plans would already have updated the information without the regulation for a total of approximately 157,000 updates to the general information. Based on the foregoing, the Department estimates that the cost of updating the disclosure of general information will total about $13 million a year as shown in Table 4.
In total, the cost of the disclosure of the general information will be almost $75 million in 2011 and almost $23 million in each subsequent year as shown in Table 4.
The cost of disclosing investment-related compensation information will be attributable primarily to time spent gathering the required information.
In addition, service providers must disclose changes to investment information. The Department assumes that service providers will have to disclose investment information changes to each responsible plan fiduciary at least once per year due to the regulation, resulting in about 200,000 disclosures. This notification is expected to require one-half hour of financial professional time to prepare. Further, it is assumed that 14 percent (over 31,000) of arrangements will be new in a year and require the initial investment disclosure. Based on the foregoing, the Department estimates that reporting the required investment related information in years 2012 and later will cost approximately $7.3 million annually as shown in Table 5.
ERISA requires plan fiduciaries, when selecting or monitoring service providers, to act prudently and solely in the interest of the plan's participants and beneficiaries and for the exclusive purpose of providing benefits and defraying reasonable expenses of administering the plan. Fundamental to a fiduciary's ability to discharge these obligations is the availability of information sufficient to enable the plan fiduciary to make informed decisions about the services, the costs, and the service provider. The rule will assist plan fiduciaries in this area by requiring service providers to make specified complete and accurate disclosures in order to benefit from the section 408(b)(2) statutory exemption.
The Department estimates the responsible plan fiduciaries will need one hour to ensure compliance with the rule; therefore, the cost of the review is expected to be approximately $43.6 million in 2011 as reported in Table 3.
Starting in 2012 and each year thereafter, responsible plan fiduciaries of new plans will have to familiarize themselves with the rule to ensure their compliance . Based on data from the 2005 and 2006 Form 5500, the Department estimates that 14 percent of plans will be new each year. The Department assumes that responsible plan fiduciaries of new plans will have the same costs as fiduciaries of existing plans. Therefore, the cost of the review for fiduciaries of new plans is estimated to be $5.9 million annually for years 2012 and thereafter as shown in Table 2.
The final class exemption contained in paragraph of (c)(1)(ix) of the rule provides relief from the restrictions of ERISA section 406(a)(1)(C) and (D) for plan fiduciaries that enter into a contract with service providers upon a mistaken belief that they have received all of the disclosures required by the interim final rule. Upon discovering that a covered service provider failed to disclose all of the required information, the responsible plan fiduciary must take reasonable steps to obtain such information, including requesting in writing that the covered service provider furnish the information in order to rely on the exemption and notify the Department if the service provider fails to comply with the written request within 90 days.
While the Department has no basis for estimating the percentage of arrangements where a responsible plan fiduciary will not receive all of the required disclosures from a covered service provider, the Department assumes that 10 percent of arrangements (approximately 69,000) may experience a failure that will require the responsible plan fiduciary to send a notice to the service provider in 2011. In 2012 and thereafter, the number of requests for missing information is expected to decrease to 5 percent of arrangements (about 35,000). The Department estimates that one-half hour of a financial professional's time will be required to prepare the request for the undisclosed information. Table 6 reports the cost of preparing the disclosure to be almost $2.2 million in 2011 and approximately $1.1 million annually in the subsequent years.
The Department further assumes that service providers may not respond to 10 percent of the requests for undisclosed information within 90 days, which will result in the responsible plan fiduciary preparing and sending a notice to the Department. The Department estimates that one-half hour of a financial professional's time will be required to prepare the notice. As shown in Table 7 below, almost 7,000 notices will be sent in 2011 at a cost of approximately $218,000, and in the subsequent years, over 3,400 notices will be sent annually at a cost of approximately $109,000.
The Department assumes that clerical staff will prepare all of the required notices and disclosures for distribution and that 50 percent of the disclosures will be sent electronically at no cost. Table 8 displays for each type of disclosure the number of notices that will be sent, the required amount of clerical time, and the annual cost of preparation.
Table 9 reports the printing and postage costs associated with each required notice and disclosure. The Department assumes that 50 percent of the disclosures will be sent electronically at no cost, and that the cost of printing and paper for the remaining 50 percent of documents is 5 cents per page.
As shown in Table 10, total costs for service providers and plan sponsors add up to about $152.5 million for the year 2011.
The Department received several comments suggesting that it had underestimated the costs of the proposal and questioning various assumptions on which the estimates were based. In response to these comments, the Department increased its estimate of the amount of legal and financial professionals' time service providers would require to become compliant with the regulation. It also reevaluated its estimates of the number of affected service providers. (The Department also revised some of the proposal's provisions in light of these comments to ease compliance burdens, as explained earlier in this preamble.)
In addition to revisions made in response to comments, the Department updated its estimates of service providers, plans, participants, assets and labor costs, as well as its estimates of the preparation, distribution and mailing costs of the required disclosures, to reflect more current data.
In summary, the Department has calculated total costs of approximately $412 million for the ten-year period 2011 to 2020.
The Department's estimates of the effects of this regulation are subject to uncertainty. While the Department is confident that improved fee disclosures can reduce the time fiduciaries spend searching for needed information, discourage harmful conflicts of interest, reduce gaps in information received by plan fiduciaries, improve fiduciary decisions relating to purchases of plan services leading to reduced plan fees and provide better enforcement tools to redress abuses by service providers, it is uncertain about the magnitude of these effects. The uncertainty is attributable to gaps in available data and empirical evidence. Some key areas of uncertainty are elaborated below.
The Department attempted to consider the potential amount by which fees might be reduced. A review of literature on dispersion of mutual fund fee levels and the value of services purchased with such fees suggests that at least some fiduciaries and participants of individual account plans, by making different and more optimal choices about which services to purchase or what vendors to purchase from, might reduce fees by perhaps 11 basis points per year on average.
In light of the foregoing evidence, the Department believes it is highly possible that this regulation could fill gaps in critical information, thus improving fiduciary decisions, and will reduce service costs relative to value derived to yield benefits that exceed costs. Table 11 below provides a break-even analysis to illustrate this point. Previously cited studies suggest that perhaps a quarter of sponsors currently lack critical information
The Regulatory Flexibility Act (5 U.S.C. 601
Service providers to pension plans increasingly have complex compensation arrangements that may present conflicts of interest. Thus, small plan fiduciaries face increasing difficulty in carrying out their duty to assess whether the compensation paid to their service providers is reasonable. As supported by public commenters on the proposal and witnesses at the Department's hearing, this rule is necessary to help such fiduciaries get the information they need to negotiate with and select service providers who offer high quality services at reasonable rates.
Public comments on the proposed rule raised a number of issues with respect to its application to and impact on small entities. Several commenters affirmed the Department's view, articulated in the preamble to the proposed rule, that the number of small service providers to plans is large and that the cost of complying with the proposed rule might be proportionately higher for smaller service providers. However, some comments suggested that the Department had underestimated the cost to small service providers to comply with the proposed rule.
Many of the comments expressed uncertainty about the scope of the proposed rule's application, attributing complexity and cost to that uncertainty and to the possibility that the scope might be very broad (for example, that it might encompass a broad array of indirect service providers). The Department has refined the proposed rule to clarify that the interim final rule encompasses only those service providers and compensation arrangements that are likely to require close consideration by plan fiduciaries. Small service providers generally fall within the scope of the interim final rule only if they are plan fiduciaries, provide plan services as a registered investment adviser, provide certain other services directly to a plan and receive indirect compensation in connection with such services, or provide an investment platform through which investment options are made available to participants and beneficiaries in participant-directed individual account plans. A potentially large number of small, indirect service providers will not be subject to the interim final rule, even if they perform services for a plan under subcontract to another (direct) service provider. The Department lacks data on how many such indirect service arrangements exist, because such arrangements are not required to be identified in plans' annual reports.
Some comments suggested that the cost of rigorous disclosure is not
Some comments stated that many arrangements are not established under a formal contract and that requiring all arrangements to be so established would be costly. The Department believes such a requirement might be disproportionately costly for small service providers, whose arrangements might be small relative to the partially fixed cost of entering into a contract and who might lack in-house expertise in contract law. The interim final rule includes no such requirement, but instead allows all required disclosures to be provided by other means so long as they are provided in writing.
The Department estimates that the interim final rule will apply to approximately 9,600 small service providers (generally, those with revenue less than $6.5 million per year). These service providers generally consist of professional service enterprises that provide a wide range of services to plans, such as investment management or advisory services for plans or plan participants, and accounting, auditing, actuarial, appraisal, banking, consulting, custodial, insurance, legal, recordkeeping, brokerage, administration, or valuation services. Many of these service providers have special education, training, and/or formal credentials in fields such as ERISA and benefits administration, employee compensation, taxation, actuarial science, law, accounting, or finance.
The classes of small service providers subject to the interim final rule includes service providers who are plan fiduciaries (for example who manage plan investments), who provide services as registered investment advisers to plans, who receive indirect compensation in connection with provision of certain services (namely, accounting, auditing, actuarial, appraisal, banking, certain consulting, custodial, insurance, participant investment advisory, legal, recordkeeping, securities or other investment brokerage, third party administration, or valuation services) or who provide an investment platform through which investment options are made available to participants and beneficiaries in participant-directed individual account plans.
These small service providers will, in connection with covered service arrangements, be required to disclose to plan fiduciaries certain information. Such information will include what services will be included in the arrangement and what direct and indirect compensation the service will receive in connection with the arrangement. Certain service providers whose arrangements make certain investment products available to plans also will be required to disclose to fiduciaries certain information relating to expenses associated with such products. Certain specified information generally must be disclosed before the arrangement is entered into or renewed, on request from a fiduciary, and when the information changes.
Preparing compliant disclosures often will require one or more professional skills such as financial or legal expertise, and knowledge of financial products and services and related compensation and revenue sharing arrangements. Generally, small service providers will be responsible for disclosing only those types of compensation arrangements to which they (or their affiliate or subcontractor performing the services) are a party.
As explained in (b) above in connection with public comments, the Department took a number of steps to minimize any negative impact of this interim final rule on small service providers. These include clarifying the scope of the rule's application to include only those service providers and compensation arrangements that are likely to require close consideration by plan fiduciaries, excepting from the rule's requirements contracts or arrangements where compensation or fees are less than $1,000, and omitting from the rule a requirement that all arrangements be maintained under formal contracts. The disclosure requirements included in the interim final rule are necessary to ensure that plan fiduciaries can efficiently and effectively carry out their duties in purchasing services for plans.
The policy justification for these requirements includes benefits to fiduciaries, who will realize savings in the form of reduced search costs more than commensurate to the compliance costs shouldered by service providers. Small plan fiduciaries are likely to benefit most—lacking economies of scale and negotiating power, they would otherwise face the greatest potential cost to obtain and consider the information necessary to the performance of their duty. Small service providers, while shouldering the cost of providing disclosure, will likely often pass these costs to their plan clients, who in turn will reap a net benefit on average that will more than offset this shifted compliance cost.
Major alternatives considered by the Department fell short of the approach adopted in the interim final rule of achieving policy goals at reasonable and justified cost. As discussed, the Department rejected as unnecessarily costly approaches that would have applied disclosure requirements to arrangements involving compensation or fees of less than $1,000, to indirect service arrangements where the service provider is not a plan fiduciary, or that would have required a formal, written contract or arrangement to delineate the disclosure obligations. The Department also rejected these approaches as inadequate to achieve a central policy and legal goal—namely, enabling plan fiduciaries, including especially small plan fiduciaries, to efficiently and effectively carry out their duties in connection with the purchase of plan services by easing their access to necessary information.
An alternative approach advocated by some public commenters would not have expressly conditioned the section 408(b)(2) prohibited transaction exemption on the service provider's production of such information. That approach, however, would perpetuate the information asymmetry and therefore would not allow small plan fiduciaries to efficiently and effectively carry out their fiduciary obligations when purchasing plan services and equip them to redress service provider abuses.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)), the proposed regulation solicited comments on the information collections included therein. The Department also submitted an information collection request (ICR) to OMB in accordance with 44 U.S.C.
In connection with publication of this interim final rule, the Department submitted an ICR to OMB for its request of a new information collection. OMB approved the ICR on May 20, 2010, under OMB Control Number 1210-0133, which will expire on May 31, 2013.
A copy of the ICR may be obtained by contacting the PRA addressee shown below or at
The information collection requirements of the interim final rule are contained in paragraph (c)(1)(iv), which requires service providers to disclose, in writing, specific information to responsible plan fiduciaries related to the compensation to be received under the contract or arrangement. Generally, the information must be disclosed reasonably in advance of the date the contract or arrangement is entered into, or extended or renewed. These disclosure requirements are discussed fully in section B. of this
In order to estimate the potential costs of the disclosure provisions of the interim final rule, the Department estimated the number of service providers, plans, and arrangements covered by the rule. Based on information from the 2006 Form 5500, the Department estimates that approximately 49,000 defined benefit pension plans (DB plans) covering more than 42 million participants and approximately 646,000 defined contribution plans (DC plans) covering almost 80 million participants are covered by the rule.
The Department also estimates that based on data from the 2006 Form 5500 Annual Return/Report and Schedule C that there are almost 10,000 covered service providers. The 2006 Form 5500 Schedule C data was also used to count the number of covered plan-service provider arrangements. On average, DB plans employ more covered service providers per plan than DC plans, and large plans use more covered service providers per plan than small plans. In total, the Department estimates that DB plans have approximately 119,000 arrangements with covered service providers, while DC plans have an estimated 780,000 arrangements. For purposes of this analysis, the Department assumes that about 50 percent of disclosures between service providers and plan fiduciaries are made only electronically.
Although all covered service providers are assumed to incur these initial costs, it is likely that service providers with complex fee arrangements and conflicts of interest will require more time to comply. The Department assumes that the number of service providers with more complex arrangements can be approximated by the number of unique service providers who are reported on the Schedule C as having received $1 million or more in compensation (approximately 1,000 service providers).
The Department assumes that covered service providers with complex arrangements will require 24 hours of legal professional time and 80 hours of financial professional time.
The Department also has estimated the initial compliance review and implementation costs for service providers newly entering the market (“new service providers”) to provide service to plans (either for the first time or by re-entry) beginning in 2012 and each year thereafter. Based on data from the 2005 and 2006 Form 5500, the Department assumes that about eight percent of all service providers will be new in each year subsequent to 2011, and that these service providers will incur the same compliance review and implementation costs as existing service providers. Based on the foregoing, the Department estimates that new service providers will incur an hour burden of approximately 20,000 hours with an equivalent cost of approximately $1.5 million.
Based on the foregoing, the Department estimates that the three-year average total hour burden associated with compliance review and implementation is almost 94,000 hours. The equivalent cost of these hours is $7.0 million.
In 2012 and subsequent years, the regulation will cause additional disclosures to be made between covered plans and service providers for any new contracts and arrangements. The Department does not have information on the number of new arrangements in a year; therefore, the Department used the percentage of plans that are new plans, about 14 percent, as a proxy for the percentage of new arrangements in a year. This results in approximately 122,000 new arrangements every year. The Department assumes that half of the responsible plan fiduciaries in these arrangements would receive the required information even without the regulation enacted. The Department estimates that preparing the disclosures for new arrangements will require one hour of a legal professional's time at an equivalent cost of approximately $119 and 45 minutes of a financial professional's time at an equivalent cost of almost $63. Based on the foregoing, the total hour burden to prepare these disclosures in year 2012 and thereafter will be approximately 215,000 hours and the equivalent cost of these hours will be $20.3 million. The resulting three-year average burden hours is 673,000 hours with an equivalent cost of $63.5 million.
Paragraph (c)(1)(vi) requires service providers to provide any other information relating to compensation received in connection with the contract or arrangement that is required for the covered plan to comply with the reporting and disclosure requirements of Title I of ERISA and the regulations, forms, and schedules issued thereunder upon the request of responsible plans fiduciaries or plan administrators of covered plans. The Department is not aware of a basis for determining the number of requests that responsible plan fiduciaries or plan administrators will make; therefore, it assumes that approximately ten percent (approximately 90,000) of responsible plan fiduciaries will request additional information annually. The Department further assumes that service providers already will have this information available, because it is required to comply with other legal requirements. Therefore, the Department estimates that it will take clerical staff two minutes per request to prepare the information with an hourly rate of approximately $26. Based on the foregoing, the Department estimates that the yearly and three-year average total hour burden to disclose information upon request will total 4,500 hours at an equivalent cost of $118,000.
Paragraph (c)(1)(v)(B) generally requires service providers to disclose any changes to the general information as soon as reasonably practicable, but no later than 60 days from the date the covered service provider knows of such change. The Department assumes that one-half hour of legal professional time and one-third hour of a financial professional time will be required to update the disclosures. The Department also assumes that changes in plan disclosures will occur at least once every three years, because plans normally conduct requests for proposal (RFPs) from service providers at least once every three to five years. If it is assumed that an equal number of plans conduct an RFP in any given year, then approximately 35 percent of arrangements will require an updated disclosure every year and half of these would already have updated the information without the regulation for a total of approximately 315,000 updates to the general information. Based on the foregoing, the Department estimates that the annual hour burden to update the disclosure of general information will be approximately 268,000 hours with an equivalent cost of approximately $25.5 million.
In summary, the hour burden to disclose the required general information in 2011 will be almost 1.6 million hours with an equivalent cost of approximately $150 million. The hour burden in subsequent years will be approximately 483,000 hours with an equivalent cost of approximately $45.8 million. The average total hour burden to disclose general information over the three year period 2011-2013 will be 852,000 hours, and the equivalent cost of these hours will be $80.5 million.
The hour burden associated with disclosing investment-related compensation and fee information will be attributable primarily to the time spent gathering the required information. However, much of this cost will be reduced, because, as discussed above, the rule allows platform providers to satisfy this requirement by passing through information to the responsible plan fiduciary. Based on the foregoing, the Department assumes that preparation of investment-related compensation and fee information will require one-half hour of financial professional time for each of the individual account plans. There will be approximately 462,000 plan fiduciaries receiving this information in 2011. Further, it is assumed that 14 percent (approximately 63,000) of arrangements will be new in each subsequent year and require the initial investment disclosure. The Department estimates that the hour burden to disclose the required investment information will be approximately 362,000 hours with an equivalent cost of $17.9 million in 2011. In the subsequent years, the burden hours will be approximately 249,000 hours with an equivalent cost of $2.4 million. The three-year average hour burden associated with disclosing investment related information 462,000 disclosures are 286,000 hours at an equivalent cost of $7.6 million.
In addition, service providers must disclose changes to investment information. The Department assumes that service providers will have to disclose investment information changes to each responsible plan fiduciary at least once per year due to the regulation, resulting in approximately 399,000 disclosures. This
In summary, the hour burden to disclose all investment information in 2011 is estimated to be 362,000 hours with an equivalent cost of $17.9 million. The burden to disclose the required investment information in subsequent years is 455,000 hours with an equivalent cost of $15.1 million. The total three-year hour burden for service providers to disclose the required investment information is estimate to be 424,000 hours with an equivalent cost of $16.1 million.
Starting in 2012 and each year thereafter, responsible plan fiduciaries of new plans will have to review the new requirements. Based on data from the 2005 and 2006 Form 5500, the Department estimates that 14 percent of plans will be new each year. The Department assumes that responsible plan fiduciaries of new plans will have the same costs as fiduciaries of existing plans. Therefore, the hour burden associated with the review for fiduciaries of new plans is estimated to be approximately 94,000 hours at an equivalent cost of $5.9 million for years 2012 and thereafter.
Based on the foregoing, the hour burden imposed on plans to review the regulation is estimated to be 695,000 hours in 2011 with an equivalent cost of $43.6 million. The three-year average burden on plans to review the regulation is estimated to be 294,000 hours with an equivalent cost of $18.5 million.
While the Department has no basis for estimating the percentage of arrangements where a responsible plan fiduciary will not receive all of the required disclosures from a covered service provider, the Department assumes that 10 percent of arrangements (approximately 69,000) may experience a failure that will require the responsible plan fiduciary to send a notice to the service provider in 2011. In 2012 and thereafter, the number of requests for missing information is expected to decrease to 5 percent of arrangements (approximately 35,000). The Department estimates that one-half hour of a financial professional's time will be required to prepare the request for the undisclosed information.
The Department estimates that the burden for plans to send notice to service providers of missing information will be approximately 35,000 hours with an equivalent cost of over $2.2 million in 2011. The hour burden for subsequent years is estimated to be over 18,000 hours with an equivalent cost of $1.1 million. The three-year average burden hours for requesting missing information is estimated to be 24,000 hours with an equivalent cost of $1.5 million.
The Department further assumes that service providers may not respond to 10 percent of the requests for undisclosed information within 90 days, which will result in the responsible plan fiduciary preparing and sending a notice to the Department. The Department estimates that one-half hour of a financial professional's time will be required to prepare the notice. The Department estimates that the burden for plans to send notice to the Department of Labor will be approximately 3,500 hours with an equivalent cost of $219,600 in 2011. The hour burden for subsequent years is estimated to be approximately 1,800 hours with an equivalent cost of $110,000. The three-year average burden hours to prepare the notice to be sent to the Department are estimated to be 2,400 hours with an equivalent cost of $146,000.
Table 12 shows the total hour burden of the information collection and Table 13 shows the total equivalent cost. The total three year average hour burden for service providers and plans is estimated to be 1.4 million hours with an equivalent cost of $104 million. The total three-year average hour burden for plans is estimated to be 320,000 hours with an equivalent cost of $20.1 million. The total three-year average hour burden of the regulation is estimated to be 1.7 million hours with an equivalent cost of $124 million.
Table 14 reports the estimated printing and postage costs associated with each required notice and disclosure. The Department assumes that 50 percent of the disclosures will be sent electronically at no cost, and that the cost of printing and paper for the remaining 50% of documents will be 5 cents per page. The Department estimates that the total cost burden of the rule in 2010 will be $8,830,000 (approximately $8,810.000 for service providers and $21,000 for plans), and $1,435,000 (approximately $1,424,000 for service providers and $10,000 for plans in subsequent years. The three-year average cost burden is estimated to be almost $3.9 million.
These paperwork burden estimates are summarized as follows:
The interim final rule is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as Executive Order 12875, the interim final rule does not include any Federal mandate that may result in expenditures by State, local, or tribal governments in the aggregate of more than $100 million, adjusted for inflation, or increase expenditures by the private sector of more than $100 million, adjusted for inflation.
Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism, and requires the adherence to specific criteria by Federal agencies in the process of their formulation and implementation of policies that have substantial direct effects on the States, the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. The interim final rule does not have federalism implications because it has no substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of Titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. The requirements implemented in the interim final rule do not alter the fundamental reporting and disclosure requirements of the statute with respect to employee benefit plans, and, as such, have no implications for the States or the relationship or distribution of power between the national government and the States.
Employee benefit plans, Exemptions, Fiduciaries, Investments, Pensions, Prohibited transactions, Reporting and recordkeeping requirements, and Securities.
29 U.S.C. 1135; and Secretary of Labor's Order No. 1-2003, 68 FR 5374 (Feb. 3, 2003). Sec. 2550.401b-1 also issued under sec. 102, Reorganization Plan No. 4 of 1978, 43 FR 47713 (Oct. 17, 1978), 3 CFR, 1978 Comp. 332, effective Dec. 31, 1978, 44 FR 1065 (Jan. 3, 1978), 3 CFR, 1978 Comp. 332. Sec. 2550.401c-1 also issued under 29 U.S.C. 1101. Sec. 2550.404c-1 also issued under 29 U.S.C. 1104. Sec. 2550.407c-3 also issued under 29 U.S.C. 1107. Sec. 2550.404a-2 also issued under 26 U.S.C. 401 note (sec. 657, Pub. L. 107-16, 115 Stat. 38). Sec. 2550.408b-1 also issued under 29 U.S.C. 1108(b) (1) and sec. 102, Reorganization Plan No. 4 of 1978, 3 CFR, 1978 Comp. p. 332, effective Dec. 31, 1978, 44 FR 1065 (Jan. 3, 1978), and 3 CFR, 1978 Comp. 332. Sec. 2550.408b-2 also issued under sec. 102, Reorganization Plan No. 4 of 1978, 3 CFR, 1978 Comp. p. 332, effective Dec. 31, 1978, 44 FR 1065 (Jan. 3, 1978), and 3 CFR, 1978 Comp. 332. Sec. 2550.412-1 also issued under 29 U.S.C. 1112.
(c)
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(iii)
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(A) A covered service provider must disclose the information required by paragraph (c)(1)(iv) of this section to the responsible plan fiduciary reasonably in advance of the date the contract or arrangement is entered into, and extended or renewed, except that—
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(
(B) A covered service provider must disclose a change to the information required by paragraph (c)(1)(iv) of this
(vi)
(A) Upon request of the responsible plan fiduciary or covered plan administrator, the covered service provider must furnish any other information relating to the compensation received in connection with the contract or arrangement that is required for the covered plan to comply with the reporting and disclosure requirements of Title I of the Act and the regulations, forms and schedules issued thereunder.
(B) The covered service provider must disclose the information required by paragraph (c)(1)(vi)(A) of this section not later than 30 days following receipt of a written request from the responsible plan fiduciary or covered plan administrator, unless such disclosure is precluded due to extraordinary circumstances beyond the covered service provider's control, in which case the information must be disclosed as soon as practicable.
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(viii)
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(A) The responsible plan fiduciary did not know that the covered service provider failed or would fail to make required disclosures and reasonably believed that the covered service provider disclosed the information required by paragraph (c)(1)(iv) or (vi) of this section;
(B) The responsible plan fiduciary, upon discovering that the covered service provider failed to disclose the required information, requests in writing that the covered service provider furnish such information;
(C) If the covered service provider fails to comply with such written request within 90 days of the request, then the responsible plan fiduciary notifies the Department of Labor of the covered service provider's failure, in accordance with paragraph (c)(1)(ix)(E) of this section;
(D) The notice shall contain the following information—
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(E) The notice shall be filed with the Department not later than 30 days following the earlier of—
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(F) The notice required by paragraph (c)(1)(ix)(C) of this section shall be sent to the following address: U.S. Department of Labor, Employee Benefits Security Administration, Office of Enforcement, 200 Constitution Ave., NW., Suite 600, Washington, DC 20210; or may be sent electronically to
(G) The responsible plan fiduciary, following discovery of a failure to disclose required information, shall determine whether to terminate or continue the contract or arrangement. In making such a determination, the responsible plan fiduciary shall evaluate the nature of the failure, the availability, qualifications, and cost of replacement service providers, and the covered service provider's response to notification of the failure.
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National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The National Oceanic and Atmospheric Administration publishes this notice to provide the general public with a consolidated source of program and application information related to its competitive grant and cooperative agreement award offerings for fiscal year (FY) 2011. This Omnibus notice is designed to replace the multiple
Proposals must be received by the date and time indicated under each program listing in the
Proposals must be submitted to the addresses listed in the
Please contact the person listed within this notice as the information contact under each program.
Applicants must comply with all requirements contained in the Federal Funding Opportunity announcement for each of the programs listed in this omnibus notice. The FFO announcements are available at
This notice describes the basic information and requirements for competitive grant/cooperative agreement programs offered by NOAA. These programs are open to any applicant who meets the eligibility criteria provided in each entry. To be considered for an award in a competitive grant/cooperative agreement program, an eligible applicant must submit a complete and responsive application to the appropriate program office. An award is made upon conclusion of the evaluation and selection process for the respective program.
Each of the grant opportunities listed in this notice provides: A description of the program, funding availability, statutory authority, catalog of federal domestic assistance (CFDA) number, application deadline, address for submitting proposals, information contacts, eligibility requirements, cost sharing requirements, and intergovernmental review under Executive Order 12372.
This section lists NOAA's mission goals, which are based on the NOAA Strategic Plan. All awards issued by NOAA must meet at least one of NOAA's mission goals. Below each mission goal statement, you will find a list of the fiscal year 2011 project competitions that address that mission goal.
Funded proposals should help achieve the following outcomes: A healthy and productive coastal and marine ecosystem that benefits society; and a well-informed public that acts as a steward of coastal and marine ecosystems.
1. Coral Reef Conservation Program Fishery Management Council Coral Reef Conservation Cooperative Agreements
2. Fiscal Year 2011 Community-based Marine Debris Removal Project Grants
3. Fiscal Year 2011 Open Rivers Initiative
4. Fiscal Year 2011 NOAA Chesapeake Bay Watershed Education and Training (B-WET)
5. NOAA New England Bay Watershed Education and Training (B-WET) Program
6. Fiscal Year 2011 Monkfish Research Set-Aside
7. Fiscal Year 2011 Scallop Research Set-Aside
8. John H. Prescott Marine Mammal Rescue Assistance Grant Program (Prescott Grant Program) for Fiscal Year 2011
9. Protected Species Cooperative Conservation
10. Fiscal Year 2011 Gulf of Mexico NOAA Bay Watershed Education and Training (B-WET) Program
11. Marine Fisheries Initiative (MARFIN)
12. Bluefin Tuna Research Program
13. Cooperative Research Program
14. Fiscal Year 2011 Coastal Resilience Networks Program
15. Fiscal Year 2011 NOAA Hawaii Program Bay Watershed Education and Training (B-WET)
16. Fiscal Year 2011 Implementation of the U.S. Integrated Ocean Observing System (IOOS)
17. Coral Reef Conservation Program International Coral Reef Conservation Cooperative Agreements
18. Fiscal Year 2011 Regional Ecosystem Prediction Program (REPP) Concept of Operations for Models to Support Regional Coastal Ecosystem Management
19. Harmful Algal Bloom Programs
20. Fiscal Year 2011 Regional Ecosystem Prediction Program (REPP) Pulley Ridge
21. Fiscal Year 2011 NOAA California Bay Watershed Education and Training Program
22. Fiscal Year 2011 NOAA Pacific Northwest Bay Watershed Education and Training (B-WET) Program
23. Coral Reef Conservation Program Domestic Coral Reef Conservation Grants
24. National Estuarine Research Reserve Graduate Research Fellowship Program for Fiscal Year 2011
25. National Estuarine Research Reserve System (NERRS) Land Acquisition and Construction Program for Fiscal Year 2011
26. Coral Reef Conservation Program State and Territorial Coral Reef Conservation Cooperative Agreements
27. Fiscal Year 2011 NMFS-Sea Grant Fellowships in Population Dynamics
28. Fiscal Year 2011 NMFS-Sea Grant Fellowships in Marine Resource Economics
29. Fiscal Year 2012 National Sea Grant College Program Dean John A. Knauss Marine Policy Fellowship
30. Fiscal Year 2011 Small Grants for Marine Archaeological Exploration
31. Financial Assistance to Establish Five NOAA Cooperative Science Centers at Minority Serving Institutions
Funded proposals should help achieve the following outcomes: A predictive understanding of the global climate system on time scales of weeks to decades to a century with quantified uncertainties sufficient for making informed and reasoned decisions; and use of NOAA's climate products by climate-sensitive sectors and the climate-literate public to support their plans and decisions.
1. Fiscal Year 2011 Coastal Resilience Networks Program
2. Fiscal Year 2011 NOAA Hawaii Program Bay Watershed Education and Training (B-WET)
3. Fiscal Year 2011 Implementation of the U.S. Integrated Ocean Observing System (IOOS)
4. National Estuarine Research Reserve Graduate Research Fellowship Program for Fiscal Year 2011
5. Collaborative Science, Technology, and Applied Research (CSTAR) Program
6. Fiscal Year 2011 Climate Program Office
7. Fiscal Year 2012 National Sea Grant College Program Dean John A. Knauss Marine Policy Fellowship
8. Financial Assistance to Establish Five NOAA Cooperative Science Centers at Minority Serving Institutions
9. Climate Data Record Program Office for Fiscal Year 2011
Funded proposals should help achieve the following outcomes: Reduced loss of life, injury, and damage to the economy; better, quicker, and more valuable weather and water information to support improved decisions; and increased customer satisfaction with weather and water information and services.
1. Fiscal Year 2011 Coastal Resilience Networks Program
2. Fiscal Year 2011 NOAA Hawaii Program Bay Watershed Education and Training (B-WET)
3. Fiscal Year 2011 Implementation of the U.S. Integrated Ocean Observing System (IOOS)
4. National Estuarine Research Reserve Graduate Research Fellowship Program for Fiscal Year 2011
5. Collaborative Science, Technology, and Applied Research (CSTAR) Program
6. Meteotsunami Warning Project
7. Fiscal Year 2012 National Sea Grant College Program Dean John A. Knauss Marine Policy Fellowship
8. Fiscal Year 2011 Joint Hurricane Testbed
9. Financial Assistance to Establish Five NOAA Cooperative Science Centers at Minority Serving Institutions
Funded proposals should help achieve the following outcomes: Safe, secure, efficient, and seamless movement of goods and people in the U.S. transportation system; and environmentally sound development and use of the U.S. transportation system.
1. Fiscal Year 2011 Implementation of the U.S. Integrated Ocean Observing System (IOOS)
2. Collaborative Science, Technology, and Applied Research (CSTAR) Program
3. Fiscal Year 2012 National Sea Grant College Program Dean John A. Knauss Marine Policy Fellowship
4. Financial Assistance to Establish Five NOAA Cooperative Science Centers at Minority Serving Institutions
Funded proposals should help achieve the following outcomes: A continuous stream of satellite data and information with the quality and accuracy to meet users requirements for spatial and temporal sampling and timeliness of delivery; adequate number of ship operating days and aircraft flight hours needed to meet NOAA's data collection requirements with high customer satisfaction; integrated observing system architectures, data management architectures, and computing and modeling capabilities to better enable NOAA's mission; a united NOAA working together—guided by a clear strategic vision for planning, programming, and execution—to achieve NOAA's goals; secure, reliable, and robust information flows within NOAA and out to the public; modern and sustainable facilities providing safe and effective work environment; efficient and effective financial, administrative, and acquisition management services; workforce management processes that support a diverse and competent workforce; and integrated Homeland Security and emergency response capabilities.
1. Fiscal Year 2011 NOAA Chesapeake Bay Watershed Education and Training (B-WET)
2. National Estuarine Research Reserve Graduate Research Fellowship Program for Fiscal Year 2011
3. Fiscal Year 2012 National Sea Grant College Program Dean John A. Knauss Marine Policy Fellowship
4. Environmental Literacy Grants for Formal K-12 Education
5. Financial Assistance to Establish Five NOAA Cooperative Science Centers at Minority Serving Institutions
The full funding announcement for each program is available via the Grants.gov Web site at:
The due dates and times for paper and electronic submissions are identical. NOAA strongly recommends that you do not wait until the application deadline to begin the application process through Grants.gov. Your application must be received and validated by Grants.gov no later than the due date and time.
Getting started with Grants.gov is easy. Users should note that there are two key features on the Web site: Find Grant Opportunities and Apply for Grants. The site is designed to support these two features and your use of them.
While you can begin searching for grant opportunities immediately, it is recommended that you complete the steps to Get Started (below) ahead of time. This will help ensure you are registered with Grants.gov and can submit your application when you find an opportunity for which you would like to apply.
In order for you to apply as an individual, the announcement must specify that the program is open to individuals and it must be published on the Grants.gov Web site. Individuals must register with the Credential Provider (see Grants.gov “Get Started”) and with Grants.gov (see Grants.gov “Get Started”). Individuals do not need a DUNS number to register (see Grants.gov “Get Started”) and submit their applications. The system will generate a default value in that field.
This section provides the registration and application submission instructions for NOAA program applications. Please read the following instructions carefully and completely.
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The following provides some helpful tips for applicants when applying on-line using Grants.gov/Apply.
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The registration process is a separate process from submitting an application. Applicants are, therefore, encouraged to register early. The registration process can take approximately two weeks to be completed. Therefore, registration should be done in sufficient time to ensure it does not impact your ability to meet required submission deadlines. You will be able to submit your application online anytime after you receive your User Name and password from Grants.gov.
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Grants.gov has a full set of instructions on how to apply for funds on its Web site at
Grants.gov allows applicants to download the application package, instructions and forms that are incorporated in the instructions, and work off line. In addition to forms that are part of the application instructions, there will be a series of electronic forms that are provided utilizing an Adobe Reader.
Grants.gov is only compatible with versions 8.1.1 and above. Please do not use lower versions of the Adobe Reader.
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NOAA suggests that applicants submit their applications during the operating hours of the Grants.gov, so that if there are questions concerning transmission, operators will be available to walk you through the process. Submitting your application during the Contact Center hours will also ensure that you have sufficient time for the application to complete its transmission prior to the application deadline. Applicants using dial-up connections should be aware that transmission could take some time before Grants.gov receives it. Grants.gov will provide either an error or a successfully received transmission message. Grants.gov reports that some applicants abort the transmission because they think that nothing is occurring during the transmission process. Please be patient and give the system time to process the application. Uploading and transmitting many files, particularly electronic forms with associated XML schemas, will take some time to be processed.
NOAA has standardized the evaluation and selection process for its competitive assistance programs. There are two separate sets of evaluation criteria and selection procedures (see below), one for project proposals, and the other for fellowship, scholarship, and internship programs.
Upon receipt of a full application by NOAA, an initial administrative review will be conducted to determine compliance with requirements and completeness of the application. A merit review will also be conducted by one mail reviewer and at least three peer review panel reviewers to produce a rank order of the proposals. Each reviewer will individually evaluate and rank proposals using the Evaluation Criteria set forth in this notice.
The NOAA Program Officer may review the ranking of the proposals and make recommendations to the Selecting Official based on the administrative and/or merit review(s) and selection factors listed below. The Selecting Official selects proposals after considering the administrative and/or merit review(s) and recommendations of the Program Officer. In making the final selections, the Selecting Official will award in rank order unless the proposal is justified to be selected out of rank order based upon one or more of the selection factors below. The Program Officer and/or Selecting Official may negotiate the funding level of the proposal. The Selecting Official makes final award recommendations to the Grants Officer authorized to obligate the funds.
1. Importance and/or relevance and applicability of a proposed project to the program goals: This ascertains whether there is intrinsic value in the proposed work and/or relevance to NOAA, (other than NOAA), regional, state, or local activities.
2. Technical/scientific merit: This assesses whether the approach is technically sound and/or innovative, if the methods are appropriate, and whether there are clear project goals and objectives.
3. Overall qualifications of applicants: This ascertains whether the applicant possesses the necessary education, experience, training, facilities, and administrative resources to accomplish the project.
4. Project costs: The project's budget is evaluated to determine if it is realistic and commensurate with the project needs and timeframe.
5. Outreach and education: NOAA assesses whether this project provides a focused and effective education and outreach strategy regarding its mission to protect the Nation's natural resources.
1. Availability of funding.
2. Balance/distribution of funds:
a. Geographically,
b. By type of institutions,
c. By type of partners,
d. By research areas, and
e. By project types.
3. Whether the project duplicates other projects funded or considered for funding by NOAA or other Federal agencies.
4. Program priorities and policy factors.
5. Applicant's prior award performance.
6. Partnerships and/or participation of targeted groups.
7. Adequacy of information necessary for NOAA to make a National Environmental Policy Act determination and draft necessary documentation before funding recommendations are made to the Grants Officer.
Upon receipt of a full application by NOAA, an initial administrative review will be conducted to determine compliance with requirements and completeness of the application. A merit review will also be conducted by one mail reviewer and at least three peer review panel reviewers to produce a rank order of the proposals. Each reviewer will individually evaluate and rank proposals using the Evaluation Criteria set forth in this notice.
The NOAA Program Officer may review the ranking of the proposals and make recommendations to the Selecting Official based on the administrative and/or merit review(s) and selection factors listed below. The Selecting Official selects proposals after considering the administrative and/or merit review(s) and recommendations of the Program Officer. In making the final selections, the Selecting Official will award in rank order unless the proposal is justified to be selected out of rank order based upon one or more of the selection factors below. The Program Officer and/or Selecting Official may negotiate the funding level of the proposal. The Selecting Official makes final award recommendations to the Grants Officer authorized to obligate the funds.
1. Academic record and statement of career goals and objectives of the student.
2. Quality of project and applicability to program priorities.
3. Recommendations and/or endorsements of the student.
4. Additional relevant experience related to diversity of education; extra-curricular activities; honors and awards; and interpersonal, written, and oral communications skills.
5. Financial need of the student.
1. Availability of funds.
2. Balance/distribution of funds:
a. Across academic disciplines,
b. By types of institutions, and
c. Geographically.
3. Program-specific objectives.
4. Degree in scientific area and type of degree sought.
Paper application packages are available on the NOAA Grants Management Web site at:
Grants.gov requires applicants to register with the system prior to submitting an application. This registration process can take several weeks and involves multiple steps. In order to allow sufficient time for this process, you should register as soon as you decide to apply, even if you are not yet ready to submit your proposal. If an applicant has problems downloading the application forms from Grants.gov, contact Grants.gov Customer Support at 1-800-518-4726 or
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We support cultural and gender diversity in our programs and encourage eligible women and minority individuals and groups to submit proposals. Furthermore, we recognize the interest of the Secretaries of Commerce and Interior in defining appropriate marine management policies and programs that meet the needs of the U.S. insular areas. We encourage proposals from eligible individuals, government entities, universities, colleges, and businesses in U.S. insular areas as defined by the MMPA (Section 3(14), 16 U.S.C. 1362). This includes the Commonwealth of Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands. We are strongly committed to broadening the participation of Minority Serving Institutions (MSIs), which include Historically Black Colleges and Universities, Hispanic Serving Institutions, Tribal Colleges and Universities, and institutions that work in undeserved areas in our programs. The DOC/NOAA/NMFS vision, mission, and goals are: to achieve full participation by MSIs; to advance the development of human potential; to strengthen the Nation's capacity to provide high-quality education; and to increase opportunities for MSIs to participate in, and benefit from, financial assistance programs. The Prescott Grant Program encourages all eligible applicants to include meaningful participation of MSIs whenever practicable. Applicants are not eligible to submit a proposal under this program if they are an employee of the DOC or DOI. Unsatisfactory performance under prior or current awards, including delinquency in submitting progress and financial reports, may result in proposals not being considered for funding under the Fiscal Year 2011 Prescott Grant Program.
Full Proposals. Full proposals must be received no later than 5:59 p.m. Hawaii Time, September 15, 2010. For proposals submitted through Grants.gov, a date and time receipt indication by Grants.gov will be the basis of determining timeliness. If an applicant does not have Internet access, one set of originals (signed) and one electronic copy on CD of the proposals and related forms should be mailed to NOAA Pacific Services Center, Stephanie Bennett, Suite 1550, 737 Bishop St., Honolulu, Hawaii, 96813. Hard copy applications will be date and time stamped when they are received. Full proposals received after the submission deadline will not be reviewed or considered. Applicants may not submit full proposals unless they submitted an LOI. The final decision to submit a full proposal will be made by the principle
Full Proposals must be received by
Applicants should have a working relationship and demonstrated experience working with the local government authorities that manage the marine areas addressed. Applicants for this funding opportunity must have experience conducting regional coordination work in two or more countries (except independent Samoa—see Section I.B of the FFO announcement) within a priority region (as described below) with other local partners and the local/regional/national government(s) with jurisdiction over the marine sites listed in the pre- and final applications. Priority will be considered for those competitive pre- and final applications that propose working effectively in more than two countries (except independent Samoa—see Section I.B of the FFO announcement). Applicants must describe their past experience in the selected sites or countries and whether there are any environmental conservation agreements in place with the local partners and government authorities. Pre- and final applications that propose work across multiple regions (for ex., Micronesia and the Southwest Pacific) are eligible to apply; in these instances, the application must demonstrate that the two or more countries in which work is proposed can be grouped legitimately based on existing regional networks, agreements, and/or existing coral reef conservation activities. Specific country eligibility is limited to: 1. The Non-US countries and territories of the Wider Caribbean as defined by the Cartagena Convention: Antigua & Barbuda, Bahamas, Barbados, Belize, Colombia, Costa Rica, Dominica, Dominican Republic, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, St. Kitts and Nevis, St. Lucia, St. Vincent & Grenadines, Suriname, Trinidad & Tobago, Venezuela, France Caribbean Territories, Netherlands Caribbean Territories and United Kingdom Caribbean Territories 2. The Non-US Micronesia region including independent countries under compacts of free association with the United States: the Republic of the Marshall Islands; the Republic of Palau; and the Federated States of Micronesia as well as the independent nations of Kiribati and Nauru. 3. The Southwest Pacific: independent Samoa, Fiji, Vanuatu, Tonga and Tuvalu.
Please note that late pre-applications cannot be considered under any circumstances including e-mail transmission malfunctions. Electronic files of pre-applications must arrive without viruses. If attachments cannot be opened due to a virus or they arrive with a virus, the pre-applications will be disqualified. You may call us at 301-713-3078 x218 before the deadline to ensure that your pre-application arrived.
As per section 6403(b)(1) of the Act, funds for any coral conservation project funded under this Grant Program may not exceed 50 percent of the total cost of the award. Therefore, any coral conservation project under this Grant Program requires a 1:1 contribution of matching funds. Matching funds can come from a variety of public and private sources and can include in-kind goods and services such as private boat use and volunteer labor. Federal sources cannot be considered as matching funds, but can be described in the budget narrative to demonstrate additional leverage. Applicants are permitted to combine contributions from multiple non-federal partners in order to meet the 1:1 match requirement, as long as such contributions are not being used to match any funds received under another award. Applicants must specify in their proposal the source(s) of match and may be asked to provide letters of commitment to confirm stated match contributions. Applicants whose proposals are selected for funding will be bound by the percentage of cost sharing reflected in the award document signed by the NOAA Grants Officer. Applicants should be prepared to carefully document matching contributions for each project selected for funding. As per section 6403(b)(2) of the Coral Reef Conservation Act of 2000, the NOAA Administrator may waive all or part of the matching requirement if the Administrator determines that the project meets the following two requirements: 1. No reasonable means
Federal applications must submit their full proposals to the JHT Director Dr. Jiann-Gwo Jiing via e-mail:
Hard copy pre-proposals will be hand stamped with the time and date when received in the Office of Education. (Note that late-arriving hard copy pre-proposals provided to a delivery service on or before 5 p.m., EDT September 8, 2010 will be accepted for review if the applicant can document that the pre-proposal was provided to the guaranteed delivery service by the specified closing date and time and if the applications are received in the Office of Education no later than 5 p.m. EDT two business days following the closing date.)
Hard copy applications will be hand stamped with time and date when received in the Office of Education. (Note that late-arriving hard copy applications provided to a delivery service on or before 5 p.m., EST January 12, 2011 will be accepted for review if the applicant can provide official proof that their application was provided to the guaranteed delivery service by the specified closing date and time and if the application is received in the Office of Education no later than 5 p.m. EST two business days following the closing date.)
Funding for programs listed in this notice is contingent upon the availability of Fiscal Year 2011 appropriations. Applicants are hereby given notice that funds have not yet been appropriated for the programs listed in this notice. In no event will NOAA or the Department of Commerce be responsible for proposal preparation costs if these programs fail to receive funding or are cancelled because of other agency priorities. Publication of this announcement does not oblige NOAA to award any specific project or to obligate any available funds.
Applicants should be aware that they are required to provide a Dun and Bradstreet Data Universal Numbering System (DUNS) number during the application process. See the October 30, 2002
NOAA must analyze the potential environmental impacts, as required by the National Environmental Policy Act (NEPA), for applicant projects or proposals which are seeking NOAA Federal funding opportunities. Detailed information on NOAA compliance with NEPA can be found at the following NOAA NEPA Web site:
(a) This clause applies to the extent that this financial assistance award involves access to export-controlled information or technology.
(b) In performing this financial assistance award, the recipient may gain access to export-controlled information or technology. The recipient is responsible for compliance with all applicable laws and regulations regarding export-controlled information and technology, including deemed exports. The recipient shall establish and maintain throughout performance of the financial assistance award effective export compliance procedures at non-NOAA facilities. At a minimum, these export compliance procedures must include adequate controls of physical, verbal, visual, and electronic access to export-controlled information and technology.
(c) Definitions.
(1) Deemed export. The Export Administration Regulations (EAR) define a deemed export as any release of technology or source code subject to the EAR to a foreign national, both in the United States and abroad. Such
(2) Export-controlled information and technology. Export-controlled information and technology is information and technology subject to the EAR (15 CFR parts 730
(d) The recipient shall control access to all export-controlled information and technology that it possesses or that comes into its possession in performance of a financial assistance award, to ensure that access is restricted, or licensed, as required by applicable laws, Executive Orders, and/or regulations.
(e) Nothing in the terms of this financial assistance award is intended to change, supersede, or waive any of the requirements of applicable laws, Executive Orders or regulations.
(f) The recipient shall include this clause, including this paragraph (f), in all lower tier transactions (subawards, contracts, and subcontracts) under the financial assistance award that may involve access to export-controlled information technology.
If the performance of a financial assistance award, if approved by NOAA, requires recipients to have physical access to premises for more than 180 days or access to an information system, any items or services delivered under a financial assistance award shall comply with the Department of Commerce personal identity verification procedures that implement Homeland Security Presidential Directive-12, FIPS PUB 201, and the Office of Management and Budget Memorandum M-05-24. The recipient shall insert this clause in all subawards or contracts when the subaward recipient or contractor is required to have physical access to a controlled facility or access to an information system.
The Department of Commerce Pre-Award Notification Requirements for Grants and Cooperative Agreements contained in the
This document contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). The use of Standard Forms 424 and 424A, 424B, 424C, 424D, and SF-LLL has been approved by OMB under the respective control numbers 4040-0004, 0348-0044, 4040-0007, 0348-0041, 4040-0009, and 0348-0046. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.
This notice has been determined to be not significant for purposes of Executive Order 12866.
It has been determined that this notice does not contain policies with federalism implications as that term is defined in Executive Order 13132.
Prior notice and an opportunity for public comment are not required by the Administrative Procedure Act or any other law for rules concerning public property, loans, grants, benefits, and contracts (5 U.S.C. 553(a)(2)). Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
(a) The Director of the ONAP, in consultation with the Office of Management and Budget (OMB), shall be responsible for setting the Administration's domestic HIV/AIDS priorities and monitoring the implementation of the Strategy. The Director of the ONAP shall convene regular meetings with representatives of executive departments and agencies (agencies) to coordinate HIV/AIDS-related policies, programs, and activities.
(b) The Director of the ONAP shall annually report to the President on the implementation of the Strategy, including progress in meeting key targets and taking key actions identified in the Strategy and the Federal Implementation Plan.
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(a) The heads of executive departments and agencies shall assist and provide information to the Director of the ONAP, consistent with applicable law, as may be necessary to implement the Strategy. Each agency shall bear its own expense for carrying out activities to implement the Strategy.
(b) Nothing in this memorandum shall be construed to impair or otherwise affect:
(c) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.